Needham v Divitini - [2001] WADC 43

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: NEEDHAM -v- DIVITINI [2001] WADC 43

CORAM: COMMISSIONER GREAVES

HEARD: 12 FEBRUARY 2001

DELIVERED : 1 MARCH 2001

FILE NO/S: CIV 1524 of 1999

BETWEEN: LESLIE RONAN NEEDHAM
Plaintiff
AND
TANYA MARIE DIVITINI
Defendant

Catchwords:

Negligence - Duty of care of motorist to pedestrian - Evidence plaintiff exhibited irrational or clearly careless conduct in disregard for own safety - Plaintiff sole cause of collision - Claim dismissed

Legislation:

Nil

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff: Mr A S Stavrianou
Defendant: Mr J P T Olivier

Solicitors:

Plaintiff: Simon Walters
Defendant: Talbot & Olivier

Case(s) referred to in judgment(s):

Managrave v Vrazalica [1999] NSWCA 242
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Sibley v Kais (1967) 118 CLR 424
Stewart v Carnell (1984) 2 MVR 147
Stocks & Anor v Baldwin (1996) 24 MVR 416
Wyong Shire Council v Shirt (1980) 146 CLR 40

Case(s) also cited:

Bresatz v Przibilla (1962) 108 CLR 541
Derrick v Cheung [1999] NSWCA 341
Patullo v Thomas (1984) 1 MVR 359
Pennington v Norris (1956) 96 CLR 10
Watts v Turpin (1999) 21 WAR 402

COMMISSIONER GREAVES: The plaintiff pleads that on 29 April 1998 he was a pedestrian crossing Hannan Street, Kalgoorlie "when suddenly and without warning he was struck by a motor vehicle … driven by the defendant." He alleges that the defendant failed to keep any or any proper look out; failed to drive with any or any proper control; drove at a speed which was excessive in all the circumstances; failed to brake in time to avoid striking the plaintiff; and failed to steer or control her motor vehicle so as to avoid striking the plaintiff.
The defendant admits that the plaintiff was involved in a collision with her motor vehicle but otherwise denies she was negligent. Further or alternatively, the defendant alleges that the plaintiff was negligent in that he failed to keep any or any proper look out; failed to observe or heed the presence or approach of the defendant's motor vehicle; suddenly and without warning ran into the path of the defendant's motor vehicle; and crossed or attempted to cross the road when it was unsafe to do so and without regard to traffic already on the road.
At the time of the accident, the plaintiff was aged 48. On the day of the accident he went to the Exchange Hotel on Hannan Street, Kalgoorlie at about 11.00 am. The plaintiff said that he did not remember exactly what he had to drink and he could not be exactly sure what time he left the hotel. The plaintiff was shown Exhibit 2 which includes two photographs of Hannan Street taken at some unidentified time subsequent to the accident. The Exchange Hotel is located on the left-hand side of Hannan Street in the photographs. The plaintiff left the hotel to return to his home in Brookman Street. He said he remembered crossing the road and getting hit and that was it.
In cross-examination, he said he thought the accident occurred further down the road from the point marked "X" in photograph two. He agreed that Hannan Street at that point is almost perfectly straight and flat for several hundred yards either side of where the accident occurred. He agreed that he left the hotel sometime after lunch shortly prior to 2.00 pm. He agreed that he had been drinking consistently between the time he arrived at the hotel and the time he left it. He said he did not recall seeing the defendant's motor vehicle. He said he did not know whether he looked as he crossed the road.
The defendant gave evidence that she was driving along Hannan Street in a south‑westerly direction from the bypass road. She described the two traffic lanes to the left of the median strip and the two lanes to the right of that strip. She said it was a fine, warm, clear day. The road was dry. She was in the centre lane. She said there was not much traffic. She said she first saw the plaintiff when he was just starting to cross the road from her left some 150 metres away. She was then travelling at about 50 kilometres per hour. She took her foot off the accelerator. She said the plaintiff walked to the middle of the road and stopped. She said the plaintiff appeared to be looking at her. She continued:
"… as I got closer, probably – no, I am not sure how close, he just lunged out in front of me. I had no time to stop it just happened fast."
She said she could not have swerved to miss the plaintiff.
The defendant marked the copy of Exhibit 2 with a red circle marking the point at which she first saw the plaintiff and a red cross where the plaintiff stopped.
In cross-examination she said she was not sure what speed she slowed down to. She repeated that the plaintiff stopped in the middle of the road. He was not right on the white line he was just to the left side of it. She said she assumed he was waiting for her to pass. She said the plaintiff was looking at her and he ran across the road in front of her and collided with the right front of her vehicle.
The onus is upon the plaintiff to establish the alleged negligence of the defendant on the balance of probabilities. In short, the case for the plaintiff is that in the circumstances which I have described it was not reasonable for the defendant to act upon the assumption that the plaintiff would remain stationary to the left of the centre line to allow her to drive past and that the defendant was therefore negligent in continuing to drive in the way she described in the direction of the plaintiff.
In Managrave v Vrazalica [1999] NSWCA 242, Stein JA, with whom Beazley JA agreed, said at par 12:
"In a number of cases this Court has emphasised that the standard of care of motorists does not extend to avoiding collisions with pedestrians in every conceivable circumstances of the conduct of such persons. In particular, the law does not extend to avoiding impact where a pedestrian has exhibited irrational or clearly careless conduct which disregards his or her own safety and is, effectively, the sole cause of the collision."
His Honour then referred to the judgment Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 ‑ 48 and the judgment of Mahoney P in Stocks & Anor v Baldwin (1996) 24 MVR 416 of 420. He went on to observe that the duty of care of a driver of a motor vehicle involves a duty to persons who may themselves be careless and referred to March v E & M H Stramare Pty Ltd (1991) 171 CLR 506.
In Stewart v Carnell (1984) 2 MVR 147 , the New South Wales Court of Appeals observed:
"Negligence implies a want of care to prevent foreseeable injury. There are limits on the extent to which irrational behaviour of pedestrians, in apparent disregard of their own safety, should reasonably be anticipated by a reasonably careful motorist."
In Sibley v Kais (1967) 118 CLR 424 at 427 the High Court observed in their joint judgment:
"Whether or not in particular circumstances it is reasonable to act upon the assumption that another will act in some particular way, as for example by performing his duty under a regulation, must remain a question of fact to be judged in all the particular circumstances of the case."
The particular circumstances of this case are in my opinion beyond doubt. In my opinion, the evidence of the defendant establishes on the balance of probabilities that she was driving in a south‑westerly direction along Hannan Street when she observed the plaintiff walk to a point to the left of the lane in which the defendant was driving and stop some 150 metres ahead of her. The plaintiff appeared to be facing her and looking at her. She took her foot off the accelerator as she approached the plaintiff. At some short distance before the defendant reached the plaintiff (the exact measure of which it is not possible to determine on the evidence) the plaintiff ran out in front of her vehicle and collided with it.
In my opinion, the evidence establishes that the defendant was in the circumstances entitled to assume that the plaintiff was waiting for her to pass. In my opinion, the plaintiff exhibited irrational or clearly careless conduct in disregard for his own safety which was, effectively, the sole cause of the collision. In my opinion, the plaintiff has not established the negligence of the defendant alleged. For these reasons, I am of the opinion that the plaintiff's claim should be dismissed.