O'Brien v NM Rothschild Aust Ltd

[1999] NSWCA 211

CITATION:	O'Brien v NM Rothschild Aust Ltd & Anor [1999] NSWCA 211
FILE NUMBER(S):	CA 40084/98
HEARING DATE(S):	17 June 1999
JUDGMENT DATE:	17 June 1999
PARTIES :	Daniel Francis O'Brien v NM Rothschild Aust Ltd Sarah Elizabeth Hill
JUDGMENT OF:	Fitzgerald JA; Cole AJA; Wood CJatCL

LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	CLD 20217/95
LOWER COURT JUDICIAL OFFICER:	Simpson J

COUNSEL:	A - B Toomey QC, D Conti R - C Hoeben SC, R Cheney
SOLICITORS:	A - McClellands, Sydney R - Connery & Partners, Sydney
CATCHWORDS:	Absence negligence in driver - Pedestrian seated on median strip on Pacific Highway at midnight.
CASES CITED:	Stocks v Baldwin (1926) 24 MVR 416
DECISION:	Appeal dismissed with costs

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40084/98
CLD 20217/95

FITZGERALD JA
COLE AJA
WOOD AJA

Thursday, 17 June 1999

Daniel Francis O'BRIEN v NM ROTHSCHILD AUST Limited & Anor

JUDGMENT

1    FITZGERALD JA: The Court is grateful to counsel for careful and helpful submissions. Cole AJA will deliver the first judgment. 2    COLE AJA: The appellant was eighteen years of age when, in the early hours of 7 May 1994, he was struck by a motor vehicle whilst a pedestrian on the Pacific Highway, Chatswood. He sued the owner and the driver. 3    Simpson J, in a judgment of great clarity, entered a verdict for the defendant finding that the appellant's own actions "were the sole cause of his injuries". From that decision on liability the appellant has appealed. 4    Mr Toomey QC has persuasively put all that can be put on behalf of the appellant and has referred us to all the relevant authorities, including Stocks v Baldwin (1926) 24 MVR 416. However, in my view nothing has been raised by the appellant to cast any doubt upon the correctness of Simpson J's decision. 5 The various grounds of appeal can briefly be dealt with. 6 Ground 1: The trial judge held that, "There was at the time little traffic". The appellant argues there was no evidence of any other traffic, the driver having given evidence that there were no other vehicles travelling around her in the same direction, nor approaching from the opposite direction. There is no difference in substance between that evidence and the Judge's finding. 7 Ground 2: This ground challenges the finding that there was "no evidence of the speed with which the appellant moved". There was no such evidence. 8 Grounds 3, 4, 5 and 6: These grounds challenge the findings that the driver would not have seen the appellant in time to take evasive action, could not have been expected to see the appellant, and could not anticipate the appellant's movement before he stood up. 9 The driver, who was accepted by the trial judge, said she was driving north along the Pacific Highway keeping a proper lookout; she saw some pedestrians on the left-hand footpath and had a clear view ahead of her. However, she did not see the appellant who, whilst heavily intoxicated, had apparently crossed to the median strip of the six-lane highway and sat down on it. The accident occurred when he stood up from his sitting position and, in one motion, stepped and then commenced to run in front of the oncoming vehicle, colliding with it in the centre of the centre lane. 10 I can find no basis for disturbing the trial judge's finding that keeping a proper lookout, travelling at a proper speed, and observing pedestrians on the footpath, where one might expect pedestrians to be, the driver was not at fault in not seeing a person in clothing of unknown colour sitting on a median strip where persons are not expected to be sitting. 11 The instantaneous nature of the appellant's actions in standing and moving into the path of traffic a short distance, and apparently running the last small distance into the path of traffic, amply support the view that the driver could not have avoided the accident by taking evasive action. It is obvious that the driver could not anticipate the actions of a seated pedestrian sitting on the median strip in the early hours of a Saturday morning in the middle of a six-lane highway. 12 The appellant relies on a passage in the judgment where her Honour said:

"I am inclined to agree at least with the proposition that, with due attention to conditions on the road, Ms Hill would have seen the [appellant] at a point before he was struck by the car."

13    However, the passage continues:

"There is, however, no evidence of the clothing he was wearing or of the speed with which he moved."

14    In context, the passage relied on is not a finding that the driver should have seen the appellant prior to the accident. 15    Grounds 7, 8, 9, 10 and 11: These grounds challenge the trial judge's finding that:

"There would, once she saw him, be only two courses of action open to her: either to brake heavily, or to swerve into the left lane. Either carries its own dangers and, in any event, on the figures I have quoted, braking would have been unlikely to bring the vehicle to a halt before the point at which it struck the [appellant]. Ms Hill could not have been expected to be fully aware of the traffic conditions in the adjacent lane, and swerving into that lane would have exposed her, and the occupants of any other vehicle travelling in that lane, to danger. She could not reasonably have taken that course without first ensuring that the lane was clear, and the time available to her did not permit that. In my opinion the [appellant's] emergence on to the road was so sudden as to make it impossible for Ms Hill, even if she had seen him the moment he stood up, to do anything effective to avoid hitting him."

16    That finding, in my view, is plainly correct. The fact that there was no traffic ahead of her or around her that she could remember, does not negate her obligation to check the kerbside lane before moving to it. There was no time to do so because of the appellant's swift action. 17    Ground 12: This ground challenges the Judge's finding that the appellant's emergence on to the road was so sudden as to make it impossible for the driver to do anything to avoid hitting him. There is no basis for disturbing the Judge's finding. There was clear evidence that the appellant stood and moved in one fluent action and then briefly commenced to run before being struck. 18    Grounds 13 and 14: These grounds challenge the finding that the appellant's own actions were the sole cause of his injuries. This is a rolled-up ground of appeal encompassing all the previous grounds. The trial judge's finding was, in my view, plainly correct. 19    I would propose that the appeal be dismissed with costs. 20    FITZGERALD JA: I agree that this unfortunate young man's appeal must fail, and with the reasons for judgment of Cole AJA. I do not consider that the respondent's failure to see the appellant establishes a failure to keep a proper lookout. The respondent was faced with a sudden and, to my mind, not reasonably foreseeable, situation. Her driving behaviour prior to that situation and her inability to respond to that situation, to avoid or minimise injury to the appellant, do not bespeak negligence. I agree with the orders proposed. 21    WOOD AJA: I simply agree with the orders proposed by Cole AJA. I express my agreement with the reasons given by both the presiding judge and Cole AJA. 22    FITZGERALD JA: The order of the Court is the appeal is dismissed with costs.

* * * * * * * * * *