Powell v Dillon - [2003] WADC 70

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: POWELL -v- DILLON [2003] WADC 70

CORAM: COMMISSIONER GREAVES

HEARD: 17 MARCH 2003

DELIVERED : 24 MARCH 2003

FILE NO/S: CIV 490 of 2001

BETWEEN: CASULA POWELL
Plaintiff
AND
RAYMOND ALLAN DILLON
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 D R Sands

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
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:

Derrick v Cheung (2001) 33 MVR 393
Needham v Divitini [2001] WADC 43
Pritchard v Evans (1996) 23 MVR 149

COMMISSIONER GREAVES: On 13 October 1993, the plaintiff was walking south on Old Coast Road, Falcon at about 6.10 pm in the evening. She was involved in an accident in the vicinity of the intersection of Old Coast Road and Scenic Drive with a small truck driven by the defendant. As a result, the plaintiff suffered injury, loss and damage. Liability only is in issue.
The plaintiff gave evidence she has no recollection of the accident. On 23 December 1993, the plaintiff gave a statement to an unidentified police officer (Exhibit 2). In that statement, the plaintiff said inter alia:
"I don't have any recollection of the accident and the next thing I remember was about 5 days later in Fremantle Hospital, when I realised I had been involved in a traffic accident."
The plaintiff was cross‑examined at some length about her memory of the circumstances of the accident. On 21 August 2002, the plaintiff answered interrogatories in this action (Exhibit 1). Her answers to questions 18 to 24 suggest the plaintiff then had some recollection of the circumstances of the accident. The plaintiff gave evidence the answers to questions 18 to 24 were based on what she had been told. In the light of her statement (Exhibit 2) soon after the accident, I find on the balance of probabilities the plaintiff has no recollection of the circumstances of the accident. Mr Robert Wessling was walking in the vicinity of the accident to the west of Old Coast Road at the time. He saw the plaintiff walking south on the other side of Old Coast Road about 20 metres north of the intersection with Scenic Drive. He said she was wearing denim shorts and bright pink bathers. He said he had a totally uninterrupted view of the plaintiff. He said he heard an almighty bang and saw the defendant's truck starting to tip over. In cross‑examination, Mr Wessling said the plaintiff looked behind her three or four times, as if preparing to cross Old Coast Road. He thought she covered a distance of some 20 to 30 metres over three to four minutes. He said he did not see the plaintiff run out onto Old Coast Road and put her hands up.
The plaintiff's father gave evidence. He spoke to the defendant by telephone two days later. Mr Powell asked the defendant what happened. He replied he saw the plaintiff walking along the side of the road when she turned and ran across the road.
The defendant gave evidence he was driving a five to six tonne Isuzu van south on Old Coast Road in the left hand lane at approximately 80 kilometres per hour in an area where the speed limit was 90 kilometres per hour. He said when he was about 10 metres from the plaintiff he saw her run onto Old Coast Road, turn to face him, and throw her hands up. The centre front of his vehicle struck the plaintiff. He said he did not see the plaintiff before she ran onto the road. He said when she ran out onto the road she was looking straight ahead, then turned towards him and threw her hands up with a terrible look on her face. He said he applied his brakes and swerved but the plaintiff was too close. In cross‑examination, the defendant said he did not see the plaintiff on the side of the road before she ran onto the road. He said he had no time whatsoever to do more than he did. At 7.10 pm on 13 October 1993, the defendant gave the following statement to one Police Constable O'Connor (Exhibit 6) where he said inter alia:
"I was travelling in the left hand lane at approximately 80 km/h. I was approximately 30 metres from the Scenic Drive turn‑off, when I observed this female person run out from the scrub on the left hand side of the road. She ran out into the middle of the left hand lane, and just stopped and threw her arms into the air, and began to wave them about.
As soon as I saw her I applied my brakes heavily and tried to swerve to the right. My vehicle locked up and I then collided into the female."
Mr Dennis Morris was some 250 metres south east of the accident scene. He saw the plaintiff on the side of Old Coast Road. He saw the plaintiff waving her arms after which his view was obscured by the defendant's truck. He also gave a statement to the police on 13 October 1993 (Exhibit 8) where he said inter alia:
"As I looked down the road I saw this young female person run out from the scrub on the eastern side of Old Coast Road. She ran out right in front of a truck travelling south along Old Coast Road. The truck was in the left hand lane and travelling at normal speed.
The young female stopped in the middle of the left hand lane and began to wave her arms about her head. I then heard the truck collide with the female. Just as he collided with the female I heard the skidding of the brakes."
By par 3 of the statement of claim, the plaintiff alleges the defendant was negligent in failing to keep any or any proper lookout, failing to drive with any or any proper control, driving at a speed which was excessive in all the circumstances, failing to brake in time to avoid the collision and failing to steer or control the motor vehicle to avoid the collision.
I have considered the evidence of Mr Powell the defendant told him two days after the accident he saw the plaintiff walking on the side of the road when she turned and ran across the road. At first glance, there is some inconsistency between that evidence and the evidence of the defendant that he did not see the plaintiff until she ran onto the road. In my view, it matters not on the evidence whether the defendant saw the plaintiff before she ran onto the road. The evidence establishes on the balance of probabilities the plaintiff ran onto the road without warning at a location where it was not reasonable for the defendant to expect the plaintiff to do so. I find the defendant was keeping a proper lookout and driving at a safe speed in the circumstances and there was nothing the defendant could do to avoid the collision. The onus is upon the plaintiff to establish the alleged negligence of the defendant on the balance of probabilities.
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 at 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 my opinion, the plaintiff has failed to establish the alleged negligence of the defendant on the balance of probabilities. I find the evidence establishes on the balance of probabilities the plaintiff unexpectedly ran onto the road in front of the defendant's truck in an irrational or clearly careless way in disregard for her own safety. The conduct of the plaintiff was the sole cause of the collision. It follows the plaintiff's claim should be dismissed.