Ross v Hamilton - [1997] QSC 170

IN THE SUPREME COURT
OF QUEENSLAND
No. 1446 of 1994
Brisbane

Before the Hon. Mr Justice Muir

[Ross v. Hamilton]

BETWEEN:
MICHAEL JAMES ROSS
Plaintiff

AND:
SUSAN PATRICIA HAMILTON
Defendant

CATCHWORDS: CONTRIBUTORY NEGLIGENCE - res gestae - negligent driving

Counsel: M. Grant-Taylor for the plaintiff

R.J. Douglas for the defendant

Solicitors: Carter Newell for the plaintiff

Kew Hooper and Associates for the defendant

Hearing Dates: 6 August 1997 to 7 August 1997

REASONS FOR JUDGEMENT - MUIR J.

Judgment delivered 12 September 1997

The plaintiff was seriously injured on 28 April 1993 when struck by a motor vehicle driven by the defendant whilst crossing a Service Road at Goodna at a pedestrian crossing controlled by traffic light signals. The defendant was the driver of the vehicle. Only three witnesses to the accident gave evidence. They were the plaintiff, the defendant, and a Mr Hogan, who was travelling in a motor vehicle behind the defendant’s. The plaintiff swears to a recollection of waiting for and seeing a green walk signal before commencing to cross the road. The defendant and Mr Hogan swear that the motor vehicle traffic light was green at all relevant times. Mr Grant-Taylor for the plaintiff, and Mr Douglas for the defendant, submitted that I should determine the case without regard to the possibility that the pedestrian and traffic lights were out of synchronisation. There no evidence of malfunction of the lights at relevant times.
Uncontested Facts
Before going to the evidence of these persons and that of the only other witness in the case, I make the following findings in respect of uncontested facts. There is a pedestrian overpass constructed over Ipswich Road, opposite the Goodna Railway Station. In order to get from the top of the overpass to a station platform it is necessary to descend from the overpass by means of a ramp which executes two right-hand turns in the course of its length. A short exit section of the ramp enters the footpath in the direction of Brisbane. Near the edge of the footpath at the mouth of the ramp, there is a wire mesh barrier of perhaps 4 or 5 metres in length. A pedestrian crossing, marked by two parallel white lines across the road, is located at a gap in the barrier. A traffic light, cantilevered from a pole on the other side of the crossing, is positioned above the crossing over the centre of the road. There is another stop light mounted on that post and a third mounted on a short post on the outside of the curb at the edge of the pedestrian crossing. The latter post has a button mounted on it to enable pedestrians to activate the pedestrian walk signal and the red traffic light.
In order to proceed to the station from the pedestrian crossing one must turn right on crossing the road, walk down some 20 metres or so of footpath, cross a pedestrian overpass to a platform between two sets of railway tracks, or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ross v Hamilton

Details

AGLC: Ross v Hamilton [1997] QSC 170
Case: [1997] QSC 170
Decision Date: 12 September 1997

CaseChat Overview and Summary

The plaintiff, Michael James Ross, brought a claim against the defendant, Susan Patricia Hamilton, for injuries sustained after being struck by her vehicle while crossing a road at Goodna. The incident occurred on 28 April 1993 when Ross was walking across a pedestrian crossing that was controlled by traffic lights. The central dispute was whether the plaintiff was negligent in failing to look for oncoming traffic before stepping onto the road, and whether the defendant was negligent in not avoiding the collision despite being aware of the pedestrian crossing. The case was heard by the Supreme Court of Queensland.

The court had to determine the extent of each party's negligence and the applicability of the res gestae doctrine to statements made by Ross shortly after the accident. The primary legal issue was the assessment of contributory negligence on the part of Ross and the breach of duty by Hamilton. The court also needed to decide if Ross's statements made immediately after the accident could be admitted as evidence under the res gestae principle.

The court found that Ross's statements, made shortly after the accident, were admissible as they were spontaneous and made under the stress of the incident. The court concluded that Ross had walked onto the road on a green light without looking to his left, which constituted a reckless disregard for his own safety. The court held Hamilton 60% liable for the accident and Ross 40% liable, considering the greater potential for harm from a vehicle compared to a pedestrian. The court found that Hamilton was negligent in failing to keep a proper lookout for pedestrians, especially from the right side, and in accelerating up to the traffic lights without leaving sufficient room to avoid a collision. The court decided that the accident could have been avoided if Hamilton had maintained a proper lookout and taken appropriate evasive actions.

Orders