Pickard (By Next Friend Susan Pickard) v Mcinnes No. DCCIV-97-439 Judgment No. D3774

[1998] SADC 3975

GARETH PICKARD (BY NEXT FRIEND SUSAN PICKARD)

V
DARREN McINNES

CIVIL
HIS HONOUR JUDGE DAVID
D3774

This is an action by an infant, Gareth Pickard, suing by his next friend, Susan Pickard, for damages for personal injuries suffered by him as a result of a collision involving himself, while on a bicycle and an international truck driven by the defendant.  The accident took place on a pedestrian crossing, regulated by traffic lights, which crosses Sturt Road.  There has been no dispute that the defendant drove his truck through a red light which controlled that pedestrian crossing and in doing so hit the plaintiff who was on the crossing, causing him severe personal injuries.  It has been conceded by the defendant that he was negligent and I am now asked to decide the extent of the defendant’s liability and whether there is any, and if so, how much contributory negligence to be apportioned to the plaintiff.  At this stage I have not been asked to rule upon any question of damages.

The plaintiff was born on the 16th November 1983.  On the 8th December 1995 (the date of the accident) he was 12 years of age.  He was in Year 6 at Sturt Primary School and was living at Grandview Grove at Sturt.  Some time between 8.00 and 8.30 a.m. on the morning of the accident whilst riding his bicycle to school he crossed over the pedestrian crossing on Sturt Road which is placed between Jasmine Avenue and Grandview Grove.  Whilst on that crossing he was hit by an international truck driven by the defendant travelling west along Sturt Road.

It has been agreed that Sturt Road runs approximately east and west.  The pedestrian crossing in question is on that part of Sturt Road which runs between Marion Road and Diagonal Road.  Grandview Grove runs south off Sturt Road to the east of the pedestrian crossing and Jasmine Avenue runs north off Sturt Road just to the west of the pedestrian crossing.  Sturt Road at this location has two lanes running in a westerly direction and two lanes running in an easterly direction.  It is also agreed that the pedestrian crossing is controlled by pedestrian signals and traffic signals.  It is agreed that the sequence of signals at the time of the accident was that when the signals changed from the vehicle green phase to the pedestrian walk phase the yellow lanterns were displayed for 4 seconds.  The red signals for vehicles are then displayed for 1 second prior to the green walk signal being displayed.  It is agreed that the signals at this location are vehicle and pedestrian actuated.

The plaintiff gave evidence that on the day of the accident he rode his bicycle along the footpath from his home on Grandview Grove and turned left into Sturt Road to cross over Sturt Road via the pedestrian crossing.  He said that he sat on his bicycle with his hand on the handle bar and reached up and actuated the button to work the pedestrian crossing.  He looked left to right then right to left, then pressed the button for a second time.  He said that he saw a vehicle on his right stop and then he waited a few more seconds then the green pedestrian light (depicting a green man) came on and he started to cross the road.  He said that he crossed the road on his bicycle, not by riding it by use of the pedals, but by paddling his feet on the ground.  He then said he heard the horn of a truck and then blacked out and woke up on the road.  He said that he had walked across that crossing since he was in reception, which would have been something like 7 years from the date of giving evidence.

When cross-examined he was asked:-

"Q.    Did you start crossing over the pedestrian crossing because there was a car stopping on your right, or because you could see a green light.
A.     Once I’d seen the car stopped, I looked to see if the green light was up for me to cross and when the green light had gone up, I looked again at the traffic and then started to go across the road."

Also under cross-examination he was asked the following question:-

"Q.    Gareth, if that truck was coming down the road towards you, from the right, do you agree with me that if you had looked to your right, you would have seen it coming.
A.     I don’t know, all I remember is I’d seen the green light for me to walk, I had looked to my right again.  I seen at least one car had stopped, but I didn’t see the truck, because the part of the first car was blocking part my view."

The plaintiff also called two eye witnesses who were driving their vehicles in a westerly direction towards the pedestrian crossing and saw the accident.  Sydney George Drage was travelling west along Sturt Road towards the pedestrian crossing in the lane closest to the kerb.  As he approached the crossing he saw the light turn to amber and then to red.  There was a vehicle in front of him.  That vehicle was driven by the plaintiff’s second witness, George Willhoft.  Mr. Willhoft"s vehicle had stopped at the pedestrian crossing because of the red light.  Mr. Drage gave evidence that he stopped behind Mr. Willhoft’s vehicle far enough back to allow a vehicle to come out of Grandview Grove in front of him, turn right and proceed east along Sturt Road.  Mr. Drage gave evidence that he distinctly remembers that taking place and indeed can remember the driver of that vehicle waving to him in appreciation of his courtesy.  At the time Mr. Drage was towing a trailer. Mr. Drage gave further evidence that a few seconds after the vehicle coming out of Grandview Grove had passed his vehicle, the defendant’s truck overtook him on his right while Mr. Drage’s vehicle was still stationary.  At about the same time  he saw the plaintiff moving across the road on his bicycle.  He described the movement as "scooting", namely pushing his feet on the road rather than pedalling his bicycle.  He said that the truck went straight through the crossing despite the fact that the red light was on and collided with the plaintiff.

When cross-examined Mr. Drage said he estimated the speed of the truck as it passed him on his right to be about 20 to 25 kph.  He said that it wasn’t speeding but it didn’t look like it was going to slow down.  He said that the truck passed him on his right about 3 or 4 seconds after the vehicle coming from Grandview Grove had driven past him.  Mr. Drage then gave evidence of assisting the plaintiff while he was on the road.

Mr. Drage also said in evidence that he first noticed the lights change to amber 30 to 40 yards before the corner of Grandview Grove and Sturt Road.  This gave him plenty of time to slow down and stop approximately at that corner to allow this vehicle to come out as he described.  I observed Mr. Drage very carefully and I found him to be an honest and reliable witness.  I find that he had a very clear view of what happened and I accept his evidence that another vehicle did come out from Grandview Grove and pass in front of him.  I further accept his evidence that it was only after that vehicle had cleared the junction of Grandview Grove and Sturt Road that the defendant’s truck passed his position.  I find that all of this time the light at the pedestrian crossing facing east along Sturt Road was on red.

The plaintiff also called Mr. George Willhoft who gave evidence that he was approaching the pedestrian crossing from the east along Sturt Road.  As he approached the pedestrian crossing, he was travelling in the lane nearest to the kerb and when he was a good 100 feet back from the crossing he saw the lights start to change.  He said he did not have to stop suddenly but merely slowed down and then stopped.  He said he saw the plaintiff with a push bike on the footpath on the left waiting to cross the pedestrian crossing.  He said that he clearly saw the plaintiff look at him before crossing and crossed when the lights changed.  In his rear view mirror he saw the truck in the corner of his eye to the rear as the plaintiff set off across the road.  He then saw the truck hit the plaintiff.  He cannot say how far to the rear the truck was when he saw it in his rear view mirror because it was only for an instant and he had the disadvantage of judging distances by looking into a rear view mirror.  However he said in cross-examination that he did not see the vehicle which Mr. Drage described as having passed across his vehicle coming out of Grandview Grove.  If there is any conflict between Mr. Drage and Mr. Willhoft in relation to the existence of that vehicle I accept the evidence of Mr. Drage, because he did not have the disadvantage of surveying that part of the scene in his rear view mirror.  I find that what probably happened was that when Mr. Willhoft looked into his rear view mirror the vehicle coming out of Grandview Grove may have already departed.  At any rate if there is any conflict between those two witnesses I clearly prefer the evidence of Mr. Drage on that topic. 

Mr. Willhoft could not remember how the plaintiff was crossing Sturt Road, whether he was riding his bicycle or merely walking.  However whatever way he was doing it Mr. Willhoft was of the opinion that it was about walking speed.  He estimated that it took the plaintiff about 5 or 6 seconds to come off the footpath to the point where he was struck by the defendant’s truck.

The defendant gave evidence that on the day in question he was driving an international Atkinson truck with a capacity of 14 pallets.  The truck was loaded with fruit and vegetables and he was on the way to the Marion Shopping Centre to do a delivery.  He said that he entered Sturt Road from Marion Road, which was about 500 metres from the pedestrian crossing in question.  He gave evidence that about 80 to 90 metres from the lights at the pedestrian crossing he observed that they started to change.  He said he was doing about 40 to 45 kph and saw the plaintiff on the side of the road sitting on his bicycle.  He was travelling in the right hand lane in a westerly direction.  He gave evidence that as the pedestrian crossing light turned to amber the vehicle driven by Mr. Willhoft appeared to hesitate whether to stop or not because he saw the brake lights go on and then go off.  He then gave the following evidence:-

"Q.    When the light turned amber, can you describe to the court what your actions were.
A.     Well, the lights turned amber, and I took my foot off the accelerator, but then realising that we were actually closer to the intersection than I thought we were, my pallets were doubled up on the rear of the truck and without actually happening to hit the skids and send everything flying through the air, I decelerated back on the pedal.
HIS HONOUR
Q.     So you didn’t apply your brakes because you were frightened of your load, is that right.
A.     Yes, I did touch the brakes, but I was closer to the intersection and there was another car alongside of me, the second car that had a little bit of a locker with the other car in front of him, but everyone was coasting at a speed - I was like coming up to the lights, I was doing average speed, I didn’t go into another gear, I stayed in that gear.
HIS HONOUR
Q.     Why couldn’t you have just applied your brakes in the normal way and stopped.
A.     I wouldn’t have stopped to the end of that island to the pedestrian crossing.
Q.     Why not.
A.     Because my load would have gone all forward and I still would have finished half a truck over the intersection.
XN
Q.     So, if you could just clarify this, you actually started to apply the brakes, or did you actually apply the brakes.
A.     No, I started to apply.
Q.     And you had a change of mind.
A.     Yes.
Q.     What did you then decide to do.
A.     Knowing that the child was on the side of the road, I then decided to be able to leave the intersection safely was to keep right on through.
HIS HONOUR
Q.     How do you work that out.  What was safe about that.
A.     The child was on the side of the road.  You’re coming up to the intersection where the lights had just changed, my pallets were doubled up.  As you stand on the back of the truck they would have been at least 7 foot high, 8 foot high.  I had angles on it, so to actually really hit the brakes to stop that truck, my load would have gone forward and I still would have been right in the middle of the intersection, the whole truck.
XN
Q.     Did you observe the infant commence crossing the intersection.
A.     Pardon?
Q.     Did you see the infant cross the pedestrian crossing, as you approached it.
A.     No, I didn’t.
Q.     Sturt Road at the point where it meets with that pedestrian crossing, has two lanes, doesn’t it.
A.     Yes.
Q.     You were in the lane nearest the median strip.  The two lanes are divided by some form of dotted line, is that correct.
A.     Yes.
Q.     Can you describe to the court, where the point of impact occurred in relation to the dotted dividing line.
A.     Would have been maybe a foot, just over to the dotted line.
Q.     To which side of the dotted line, your side.
A.     On the left-hand side of the cabin.
Q.     So the point of impact was in your carriageway, not the left hand carriageway.
A.     Yes.
Q.     What part of your truck came into contact with the infant.
A.     The very corner of the left hand cabin, bumper bar.
Q.     After the impact how much further did your truck travel before it came to a stop, if at all.
A.     One body length of an 18 foot truck."

In cross-examination the topic of his load was pursued:-

"Q.    So you’re driving around with 12 tons on the back being unable to stop suddenly because the load is likely to come off, is that right.
A.     Yes.
HIS HONOUR
Q.     Is that the reason you didn’t stop suddenly in this case.
A.     Partly, yes."

The defendant also said in evidence that the plaintiff was riding his bicycle and not paddling it but he did not see him get from the edge of the road to the middle of the road.  He also said in evidence that when he saw the light change to red he was practically on the intersection.  He said he was no more than 5 metres away from the intersection when the light changed to red.  He said that at that stage the plaintiff was still on the footpath and he could not explain how the plaintiff got from the footpath to the point of the accident within that distance of the defendant’s vehicle travelling 5 metres.  He said he never saw a vehicle do a right hand turn out of Grandview Grove and vehemently disagreed with Mr. Drage’s evidence on that topic.  He was further asked in cross-examination whether he had decided to go through the pedestrian crossing because he thought he could not avoid losing some of his load and he agreed that that was the situation.

I was not impressed with the defendant as a witness.  Where his evidence is in conflict with the evidence of Mr. Drage and Mr. Willhoft I unreservedly prefer their evidence.  I find that his lookout was grossly deficient and was exacerbated by the fact that he was driving a heavy truck at a busy time of the morning and was approaching a pedestrian crossing which was obviously going to be used by school children. 

I do not accept his evidence that the light changed to red when he was some 5 metres from the pedestrian crossing.  I accept the evidence of Mr. Drage that both he and Mr. Willhoft’s vehicles were stationary because of the red light sometime before the defendant overtook Mr. Drage’s vehicle.  Although it is difficult to measure in seconds I find that the red light had been on during all of that period of time that it took for the vehicle coming out of Grandview Grove to drive across Mr. Drage’s path and clear the junction.  I find it was only after that that the defendant’s vehicle passed Mr. Drage’s position.  I therefore find that the defendant’s vehicle was some considerable distance from the pedestrian crossing when the light first changed to red.  I find that the defendant was clearly negligent and his lookout was grossly deficient in not observing the red light at the pedestrian crossing when it obviously had been on for a comparatively significant period of time.  I turn to the question whether it has been proved that the plaintiff is liable for contributory negligence.

At the time of the accident the plaintiff was a 12 year old boy. I remind myself that whether a child has taken reasonable care for his own safety is an objective test. I remind myself of the principles set out in McHale v Watson 115 CLR 199 at page 215 where Kitto, J said:-

"...contributory negligence on the part of a child consists in a failure to exercise the care reasonably to be expected of an ordinary child of the same age."

I find that the plaintiff did all that could reasonably be expected for his own safety.  I find that to ask him to have done any more would be setting unrealistic standards.  I find that the plaintiff on approaching the pedestrian crossing pushed a button that activated the light at the pedestrian crossing, looked left to right then right to left.  I find that he then pressed the button again and he saw a vehicle that was on his right (obviously Mr. Willhoft’s vehicle).  He saw that vehicle slow down and stop.  I find that he then waited a few more seconds and when the pedestrian light turned to green he started to walk across the road (evidence page 8).  I also find that before setting off having seen that the light was green he looked once again to the right.  I also find that on looking to the right he did not see the truck.  I accept his explanation that he didn’t see the truck because part of the vehicle that was stationary at the crossing was probably blocking his view.  Also I find that when the light changed to green the truck was still some considerable distance to the east along Sturt Road.  I find that to be so having unequivocally accepted the evidence of Mr. Drage.

I add further that even if he had seen the truck moving towards the pedestrian crossing it would be unreasonable to expect a 12 year old boy to even consider that that truck would not stop, even though other vehicles had, because the driver was concerned of the fate of the load he was carrying.

Not only do I find that the defendant has not proved contributory negligence, I find positively there is no contributory negligence.  I find that the defendant is entirely responsible for the accident which caused the plaintiff’s injuries.

LATER IN COURT - FRIDAY, 13TH MARCH 1998

His Honour finds that the accident which is the subject of this action was caused entirely by the negligence of the defendant.

His Honour finds that there is no contributory negligence to be apportioned to the plaintiff.

His Honour orders costs to the plaintiff to be agreed or taxed.