Robinson v Rosa; Robinson v Jordan & Rosa
[1988] TASSC 32
•8 June 1988
[1988] TASSC 32
CITATION: Robinson v Rosa; Robinson v Jordan & Rosa [1988] TASSC 32; A21/1988
PARTIES: ROBINSON, Darryl Stuart
v
ROSA, Irwin Richard
ROBINSON, Darryl Stuart
v
JORDAN, Mandy Lee and
ROSA, Irwin Richard
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 154/1986
FCA 155/1986
DELIVERED ON: 8 June 1988
JUDGMENT OF: Neasey, Nettlefold and Wright JJ
Judgment Number: A21/1988
Number of paragraphs: 12
Serial No 21/1988
List "A"
File No FCA 154/1986FCA 155/1986
ROBINSON v ROSA
ROBINSON v JORDAN and ROSA
REASONS FOR JUDGMENT FULL COURT
NEASEY J
NETTLEFOLD J
WRIGHT J
8 June 1988
ORDER OF THE COURT:
Appeal Dismissed
Serial No 21/1988
List "A"
File No FCA 154/1986FCA 155/1986
ROBINSON v ROSA
ROBINSON v JORDAN and ROSA
REASONS FOR JUDGMENT FULL COURT
NEASEY J
8 June 1988
I agree with the judgment of Wright J, and have nothing to add.
Serial No 21/1988
List "A"
File No FCA 154/1986FCA 155/1986
ROBINSON v ROSA
ROBINSON v JORDAN and ROSA
REASONS FOR JUDGMENT FULL COURT
NETTLEFOLD J
8 June 1988
I am satisfied that these appeals should be dismissed.
The true position of the appellant should be noted at the outset. The real character of his complaint is that the learned trial judge refused to find that he, the appellant, had discharged the burden of proving negligence and contributory negligence against the respondent Rosa and contributory negligence against the respondent Jordan when he ought to have found that the appellant had discharged that burden. In the nature of things, it is difficult for the party carrying the burden of proof to succeed in such a case in the absence of demonstrable error of fact or law. The position is even more difficult where, as here, the trial judge refused to accept the evidence of the appellant. The learned trial judge was entitled to decide the case relying, in substance, on the evidence of the witness Gilewicz, Mr Surveyor Griggs, the proved surrounding circumstances and any statements against interest made by the appellant.
On that basis, I am satisfied that it has not been shown that his Honour was wrong. It was not argued by counsel for the appellant that his Honour was wrong when he ruled that "I do not regard their (ie the respondents) decision to cross the road at the point where they did as one made in careless disregard of their own safety". It has not been shown that his Honour was wrong when he said "There was not heavy traffic on the roadway and when they first stepped into lane two from the line of parked cars in lane one I am satisfied the defendant would have been well out of sight". The latter conclusion is supported by the following passage in the appellant's own evidence at pp 242 - 243 of the transcript of evidence:
"And when did you first see them? … As I came round the slight bend in the road and looked straight up down Macquarie Street, that's when I first saw these people.
When you speak of the slight bend you mean the slight bend that other people have spoken of in Macquarie Street itself rather than the corner of Brooker Avenue and Macquarie Street? ... Yes, yes.
Now when you first saw those people ahead of you were you still in the left hand lane? ... Yes.
Did you remain in the left hand lane until an accident occurred? ... Yes.
I'll come back from there; when you first saw the people as you came round that slight bend, whereabouts were they? ... They were in the right hand lane.
Of the two lanes that you could use? ... Yes.
And were you able at that stage to tell what they were doing? ... They were walking slowly towards the centre of the road."
At the time the respondents commenced to cross the road traffic was light, the visibility was good, the area being well lit.
Having regard to the factors mentioned above and all the circumstances of the case his Honour was entitled to find that "their movement to about the centre of the road was executed without any carelessness on their part". His Honour was also entitled to make the following finding:
"Had Rosa pulled Miss Jordan into lane 3 when the defendant was, and at all material times had been, exclusively in that lane, that in my view would have been negligent. But I am not persuaded that this is so. I find that the defendant did swing to the far side of the road after passing Gilewicz and Charlie, but on the probabilities at the time Rosa commenced to pull Miss Jordan forward towards the southern side of the road the defendant's car was still in the process of changing lanes and it was not immediately apparent to Rosa how close the car would pass to their position and in which lane. Faced with this predicament he elected to go on lest the car proceed to their then position.".
Having commenced to cross in the circumstances found by his Honour the respondents should not have experienced any difficulty. They experienced the difficulties they did, and suffered the injuries they did, because the appellant drove in a highly culpable manner. He should not have attempted to drive past the respondents at such a high speed in the expectation that they would give way to him. It was that highly culpable conduct which was the real cause of the respondents' injuries and his Honour was entitled to order that there be judgment for the respondents against the appellant for damages to be assessed and that the appellant's claim against Rosa in the third party proceedings be dismissed.
Serial No 21/1988
List "A"
File No FCA 154/1986
FCA 155/1986
ROBINSON v ROSA
ROBINSON v JORDAN and ROSA
REASONS FOR JUDGMENT FULL COURT
WRIGHT J
8 June 1988
On Wednesday 2 May 1984 at approximately 11.20pm the appellant was driving his Commodore motor car westerly along Macquarie Street Hobart in the vicinity of the Red Lion Hotel. He had entered Macquarie Street around a sweeping right-hand corner from the southern end of the Brooker Highway having travelled from the direction of what is known as the Railway Roundabout. At the time the relevant portion of Macquarie Street was a one-way street for traffic travelling in a westerly direction. At this point Macquarie Street is 14 metres wide and at the time was divided into four traffic lanes. If those lanes were numbered 1 to 4 from the northern or Red Lion side of the road, they would have had the following widths: (a) Lane 1 - 3 metres, (b) lane 2 - 2.5 metres, (c) lane 3 - 3 metres and (d) lane 4 - 2.6 metres. At the time of the incidents giving rise to these proceedings, motor vehicles were parked in an almost continuous line on both sides of Macquarie Street and as a consequence virtually all of lanes 1 and 4 were unavailable to moving vehicular traffic. At the time mentioned the respondents had left the Red Lion Hotel and were in the process of crossing Macquarie Street from the Red Lion side to the dock side of the road where Miss Jordan's motor car was parked about 25 metres to the west of a point immediately opposite the western boundary of the hotel. As they were crossing the street, the respondents were both struck by the appellant's motor vehicle and sustained serious injuries. Neither respondent has any memory of his or her movements between leaving the Red Lion Hotel and a time well after the collision. Each of the respondents instituted proceedings against the appellant, claiming damages for personal injury, allegedly caused by his negligent driving.
In February 1986 an order was made that the issue of the appellant's liability to the respondents should be tried independently of the quantum of the respondents' claims for damages. The issues of liability in each action were tried together before Cox J and on 9 December 1986, his Honour having found entirely in the respondents' favour, entered judgment for the respondents against the appellant in each action for damages to be assessed. In the course of the proceedings, the appellant alleged that each of the respondents had been guilty of contributory negligence but his Honour rejected these allegations. In Miss Jordan's action against the appellant, the respondent Rosa had been joined as a third party on the basis of an allegation that he was partly responsible for causing her injuries in that he had pulled her into the path of the appellant's motor vehicle momentarily before the collision occurred. Although finding that the respondent Rosa had acted as alleged, his Honour rejected the allegation of liability founded on these facts. His Honour found that the respondents had travelled in Miss Jordan's Escort motor car to the Red Lion hotel at some time between 8.30 and 9.00 pm. There was evidence that each of them had had two or three drinks at the hotel but, as his Honour said, there was no evidence to suggest that either of them was adversely affected by liquor or acting in other than a perfectly normal manner. His Honour also found that at a point approximately 40 metres to the east of the eastern extremity of the hotel, the building line and the road itself describe a distinct turn to the right of about 16 degrees. His Honour also had the benefit of evidence from Mr Surveyor Griggs, who produced a detailed scale plan of the locality and made some estimates of the degree of intervisibility between the driver of a vehicle rounding the 16 degree right hand turn and a pedestrian crossing the road near the hotel entrance. If the pedestrian had been at or near the middle of lane 2 and the vehicle had been travelling within the same lane they would have become intervisible at a distance of approximately 50 to 55 metres. The only direct evidence of what occurred at the time of the collision came from a witness called by the respondents, Joseph Gilewicz, and the appellant himself. Their stories conflicted in major respects and serious questions as to the credibility of Gilewicz on the one hand and the appellant on the other were canvassed at the trial. His Honour found Mr Gilewicz to be an impressive witness and preferred his evidence in all respects where a conflict occurred between his evidence and that of the appellant. Shortly before the occurrence of the relevant collision, Mr Gilewicz, Miss Moles and a gentleman simply known to Mr. Gilewicz as "Charlie" had driven to the close vicinity of the hotel in Miss Moles' Volkswagen motor car. Miss Moles had parked her car on the northern (Red Lion) side of Macquarie Street in lane 1, just past a "No Standing" sign which was 18.5 metres from the eastern boundary of the Red Lion hotel. This was at a point close to the commencement of black and white kerb markings which prohibited the parking of vehicular traffic from that point back around the corner towards the Railway Roundabout. His Honour found that somewhere near the point at which Miss Moles' vehicle was parked, probably about a car's length closer to the hotel, Charlie, who was heavily intoxicated, staggered out onto the road just as the appellant's motor car travelling in lane 2 was about to pass by. The appellant's car either struck or went very close to Charlie and then veered from lane 2 to lane 3. Mr Gilewicz at this stage saw the two respondents about 50 yards further along the road in lane 2 crossing towards lane 4. He estimated that they were about halfway across lane 2. He said that Miss Jordan stopped and Rosa then grabbed her saying, "come on" or similar words and pulled her with him into lane 3 whereupon the appellant's vehicle collided with both of them.
The appellant was found to have a blood alcohol concentration of 0.11% when breathalyzed later that evening. However, his Honour made no specific finding adverse to the appellant based upon this evidence, although I think it would have been competent for him to find that it was likely that the appellant's skill and judgment were adversely affected by a liquor consumption of this magnitude. However, his Honour did find that the appellant was negligent in failing to apply his brakes until it was too late to avoid a collision with the two respondents and, although conscious of their presence in lane 2 and their close proximity to lane 3, he elected to pass in front of that position and did so in the expectation that they would give way to him. There was evidence including admissions by the appellant that his speed at all relevant times was about 60 klms per hour. After coming around the corner he did not brake at any time until after striking the two respondents. His Honour said, "1n my opinion as he was in charge of a dangerous object he should not have proceeded to pass close to the plaintiffs" (respondents) "at a speed and in a manner which might prevent his avoiding a collision with them should his expectation" (ie that they would give way to him) "not be fulfilled. He should have slowed down much more and taken more active steps to ascertain their intentions. His failure to do so, in my view, constituted a clear breach of his duty of care to other known road users." His Honour also found that the appellant was aware of the existence of the Red Lion hotel at the relevant time and therefore, as his Honour observed, he might reasonably have been expected to appreciate that at that hour on a week night, there may be patrons entering or leaving and in the course of doing so, crossing the roadway in its immediate vicinity. As he approached the hotel the numerous parked cars on either side of the street were obvious to him and he saw pedestrians standing on each footpath and some on the road. No complaint is made of his Honour's finding of negligence against the appellant. However his acquittal of the two respondents of contributory negligence is challenged. After fully considering the evidence and the submissions of counsel, I am unpersuaded that his Honour was wrong. There is no evidence to suggest that either of the respondents was failing to keep a proper lookout as they commenced to cross lane 1 between parked cars. His Honour was satisfied that when they first stepped into lane 2 from this point, the appellant's vehicle would have been well out of sight. His Honour's finding in this respect was challenged by counsel for the appellant but whether his Honour was right or wrong about this, (and I incline to the view that he was right), there was nothing at the time that the appellant's vehicle first came into the respondents' view to suggest that he would unexpectedly veer from lane 2 into lane 3 as he did. If aware of the appellant's car, I think that the respondents were entitled to assume that the vehicle would continue in lane 2 at about the same speed as it was travelling when it first came into their view. Had it done so, they would have had ample time to cross into lane 3 before his vehicle came abreast of them.
This is the type of judgment that pedestrians are accustomed to making in crossing one way streets in the City of Hobart at any time of the day and night. They do not normally anticipate and are not required to anticipate that a driver with whom they are intervisible will suddenly change lanes and put his vehicle on a collision course with them. A fortiori if unaware of the appellant's vehicle when they first stepped on to the clear portion of the roadway, the respondents, provided they were keeping a proper lookout as they proceeded, were entitled to continue on across the road. An important thing to remember in respect of these allegations is that the onus of establishing contributory negligence lies upon the appellant and no doubt his task took on added difficulty in the circumstances of this case as each respondent had no relevant memory of the accident. Counsel for the appellant urged upon us that the respondents should have appreciated that the appellant may be obliged to swerve as he did to avoid someone such as Charlie coming suddenly onto the roadway. But I remain unconvinced that the average reasonable pedestrian should be expected to anticipate such unusual conduct. There is nothing in the evidence to suggest that either respondent was attempting to cross the road by other than the shortest and most direct line and it seems probable to me that they were crossing directly towards Miss Jordan's parked motor vehicle. There was no evidence that they were hurrying, crossing at an angle with their backs to the traffic, or failing to keep a proper look out as they left the kerb and proceeded to cross. That they were indeed watching for approaching traffic is evidenced by the fact that Miss Jordan paused as she was crossing and that Mr Rosa was seen to be looking towards the appellant's vehicle before he grabbed her and called, "come on". I think that Mr Rosa's conduct at this point can properly be attributed to a split-second misjudgment brought about by the agony of the moment and the fact that he pulled her into the path of the appellant's vehicle cannot be laid at his door as an act of negligence causative either of his own injuries or those of Miss Jordan. As I have already mentioned, there was no attempt by the appellant to justify his driving immediately before striking the respondents on the basis that he was placed in an "agony" position by swerving to avoid Charlie. The appellant's counsel properly conceded in my view that bearing in mind both the distance travelled by the appellant after passing Charlie and his failure to bring his vehicle to a standstill although aware of other pedestrians on the road, the appellant was properly found guilty of negligence. Indeed, it seems to me that the appellant's negligence involved quite a substantial degree of culpability (cf. Pennington v Norris (1956) 96 CLR p 1 at pp 16 and 17). Of course this factor in itself does not absolve a careless pedestrian from a finding of contributory negligence, but an appreciation that the appellant was guilty of a significant degree of carelessness in causing the collision notwithstanding his necessity to manoeuvre unexpectedly in an attempt to avoid Charlie, enables one to more clearly perceive that a conclusion that the respondents failed to take reasonable care for their own safety, is not unavoidable.
In my opinion the appeals fail and should be dismissed.
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