Salomon v Fisher

[1993] QCA 512

IN THE COURT OF APPEAL	[1993] QCA 512
QUEENSLAND
Appeal No. 131 of 1993
Brisbane [Salomon v. Fisher & Anor] BETWEEN:

JON SALOMON

(Plaintiff) Appellant

- and -

DARREN EDWARD FISHER

(Defendant) Respondent

- and -

F.A.I. GENERAL INSURANCE COMPANY LIMITED

(Defendant by	Second
Election)	Respondent

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The Chief Justice
Mr Justice McPherson
Mr Justice Mackenzie
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Judgment delivered 08/12/93

JOINT REASONS FOR JUDGMENT OF THE CHIEF JUSTICE AND
MACKENZIE J., MCPHERSON J.A. DISSENTING
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APPEAL ALLOWED. SET ASIDE THE JUDGMENT ENTERED BELOW AND IN
LIEU THEREOF ENTER JUDGMENT FOR THE APPELLANT IN THE ACTION
FOR $32,895 WHICH IS 75 PER CENT OF THE TOTAL SUM OF $43,860
ASSESSED BELOW, TOGETHER WITH INTEREST AT 2 PER CENT ON
ONE-HALF OF THE COMPONENT OF $28,125 FROM THE DATE OF INJURY
TO THE DATE OF JUDGMENT WITH ENTRY OF JUDGMENT IN THIS COURT
TO BE DATED AS AT THE DATE OF JUDGMENT BELOW. THE
RESPONDENTS TO PAY THE TAXED COSTS OF THE APPEAL AND OF THE
ACTION BELOW, INCLUDING RESERVED COSTS IF ANY.
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CATCHWORDS:	NEGLIGENCE - PERSONAL INJURIES - liability - appeal from judgment in favour of defendant - whether trial judge failed to draw inference from evidence that defendant negligent in failing to keep a proper lookout
Counsel:	Mr R. Peterson for the appellant Mr K. Fleming Q.C. for the respondents
Solicitors:	Bushnell Speakman for the appellant Baker Johnson for the respondents
Hearing date:	29/10/93

IN THE COURT OF APPEAL

QUEENSLAND

Appeal No. 131 of 1993

Brisbane

Before The Chief Justice

Mr Justice McPherson Mr Justice Mackenzie

[Salomon v. Fisher & Anor]

BETWEEN:

JON SALOMON

(Plaintiff) Appellant

- and -

DARREN EDWARD FISHER

(Defendant) Respondent

- and -

F.A.I. GENERAL INSURANCE COMPANY LIMITED

(Defendant by	Second
Election)	Respondent

REASONS FOR JUDGMENT - THE CHIEF JUSTICE AND MACKENZIE J.

Judgment delivered 08/12/93

The appellant was the plaintiff in an action for damages for personal injuries arising out of a road accident.

Before the learned trial judge the plaintiff's action wholly failed although in the usual way an assessment of damages was made. The figure assessed was $43,860 including general and special damages and in addition it was ordered that certain interest be paid on part of that sum. The assessment of damages is not in issue on this appeal where the only challenge is to the finding on liability.

The accident happened on 27 August, 1990 at about direction on that road.

8.40 p.m. when the appellant was crossing Brisbane Road on
foot and the first respondent, accompanied by a passenger,

The appellant, the first respondent and Siebenhausen were amongst the witnesses called at the trial. No other eyewitness gave evidence.

The trial judge, although he did not conclude that negligence had been established, made a number of findings to which reference must be made. There are some confusions and ambiguities appearing in the transcript of evidence but the trial judge would have had an advantage in deciding what the respective witnesses were meaning to convey in their testimony and his conclusions in that respect are justified by the evidence.

As the first respondent's vehicle travelled north on Brisbane road it crossed an intersection with Tiger Street and then immediately afterwards a marked pedestrian crossing. The Coronation Hotel was situated on the intersection at its north-east corner and next to the hotel on its northern side was an establishment called "P & P Chicken". The pedestrian crossing at the hotel corner of Tiger Street was illuminated by overhead lights. The point of impact was "a few car lengths" north of the crossing, the judge has found.

The judge accepted that there was "normal ... but not over-bright" street lighting in the general area.

The position of the street lights appear in the photographic exhibits. Apart from the overhead lights placed to illuminate the crossing itself there was another overhead street light which should be taken into account. That was the next one on from the crossing in the direction in which the first respondent was travelling. From the evidence and certain markings indicated on the exhibits it seems that this particular light was closer to the point of impact than the lights at the crossing but still it is not possible to say that it was in the immediate vicinity of the point on the roadway where the appellant was struck.

The first respondent did not see the appellant until just before the impact. He then observed him standing on the roadway ahead of him and two to three feet from the centre line on his side of the road. At that moment the appellant was only about 15 metres ahead, the first respondent said in his evidence. He said that he had been travelling at about 60 kph as he drove along Brisbane Road.

He swerved in an attempt to avoid striking the appellant but he was not successful and the appellant was struck by the driver's side of the motor vehicle. The judge has found that "there was no sufficient distance" to avoid the impact from the moment when the first respondent first saw the appellant.

The appellant did not see the first respondent's approaching car at any time when it was close to the point of impact. He said he was watching traffic which was approaching from the other direction southbound along Brisbane Road. The judge said that he rejected a lot of what the appellant said although he did not specify what those matters were. However, the judge accepted the appellant's evidence that when he attempted to cross the roadway he had a clear view to his right, that is in the direction from which the first respondent approached. It seems that at that time he looked and saw lights, not close, but approaching from the distance.

The appellant explained his reasons for crossing Brisbane Road at the point where the accident occurred. He said that while on his way to the Coronation Hotel and at a position on the footpath on the opposite side of Brisbane Road to the hotel, that is from its western side, he decided to cross rather than continue on to the pedestrian crossing at the corner of Tiger Street. Whatever was the extent of the judge's acceptance of this part of the appellant's evidence he has found that the appellant "walked from the western footpath directly into the path of the (first respondent's) motor vehicle". The judge has also found that the appellant was "standing" on the roadway when the first respondent first saw him and that he "had only just arrived at the point of impact when the (first respondent) saw him".

Although the first respondent had not seen the appellant before the moment when he saw him standing on the roadway ahead, his passenger, Siebenhausen, seated in the front passenger seat of the vehicle, had observed the appellant. Based on the evidence given by Siebenhausen which is not without its confusions, His Honour has found that Siebenhausen "got a glimpse of the (appellant's) figure as it made its way from the footpath across the motor vehicle's path to the point of impact". There is no reason to regard this finding as other than supported by the evidence which Siebenhausen gave.

At one point in his reasons His Honour indicated that he would have no difficulty in inferring in the situation which has been described so far that "the reason for the collision was the plaintiff's (sic) failure to keep a proper lookout coupled perhaps with excessive speed in the circumstances and a failure to properly manoeuvre his motor vehicle". But he did not draw this inference and said that his reason for not doing so was that this was not the whole picture and that "there was a good deal more".

One searches in vain for additional critical features beyond these two subsequently specified in the judge's reasons: the appellant "had only just arrived at the point of impact" when the first respondent saw him and the appellant was wearing very dark clothing.

It is hard to see that the appellant's recent arrival at the point of impact supports a view favourable to the first respondent. It would mean that the appellant had immediately prior to that moment walked across the path of the vehicle from its left and done so at a time when the vehicle was not as far away as it would have been if the appellant had been standing on the roadway ahead for a longer interval. In moving across the road as he had done the appellant could be seen by someone in the front seat of the vehicle. Siebenhausen's evidence establishes this. It is true that the appellant was wearing dark clothing but allowing for the uncertain assistance which might have been provided by "normal" street lighting placed at the points the exhibits show, significant evidence in favour of the appellant's case comes from Siebenhausen. The conclusion can be reached that the appellant's dark clothing did not prevent someone seated in the front seat of the first respondent's vehicle from observing the appellant's movement from left to right of the vehicle as he made his way across the street to the point where he stopped. It should also be mentioned that there was no further vehicle or other obstruction to the left of the first respondent which might have prevented his driving to the left if he had seen the appellant in time.

The trial judge seems to have been influenced in his conclusion by the fact that the appellant had consumed a very large quantity of alcohol in the period leading up to the accident. It was found that he had consumed 16 pots of beer in the four preceding hours. While consumption of this quantity might tend to induce imprudent or unpredictable behaviour in the drinker it is a factor which tends to be deprived of particular relevance in this case since it has been possible to make precise findings about the drinker's movements. The appellant is shown to have been engaged in crossing a street in a built-up area where there was normal street lighting and he was doing it by a two stage process not uncommon in circumstances when there is traffic flowing both ways on a road namely by pausing in the vicinity of the centre line until the second half could be safely crossed. This case is not one where the appellant ran or projected himself suddenly and unexpectedly into the path of a closely approaching vehicle.

The conclusion should be reached that the second respondent was guilty of negligence in failing to see the appellant until it was too late to avoid hitting him, this being in circumstances where, had a proper lookout been kept, the first respondent, by braking or steering around the appellant, would have managed to prevent any impact occurring. On the other hand, an impression remains that taking appropriate care for his own safety the appellant when near a marked crossing should have crossed at it rather than where he did and probably thereby have improved his prospects of crossing unharmed. Also, if he was forced to pause near the centre of the roadway he should have directed some of his attention to the direction from which the first respondent's vehicle approached and then moved onto or closer to the centre line when that became necessary. The greater share of responsibility should nevertheless be attributed to the first respondent. Negligence should be apportioned 75 per cent against the first respondent and 25 per cent against the appellant.

The appeal should be allowed and the judgment entered below set aside and in lieu thereof there should be judgment entered for the appellant in the action for 75 per cent of the figure of $43,860 which was assessed below, together with interest at two per cent on one-half of $28,125 (being 75 per cent of the figure agreed for personal injuries) from the date of injury to the date of judgment with entry of judgment in this Court to be dated as of the date of the judgment below. The appellant should have his taxed costs of the appeal and of the action below against both respondents including reserved costs if any.

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 131 of 1993

Brisbane

Before The Chief Justice

Mr Justice McPherson Mr Justice Mackenzie

[Salomon v. Fisher & Anor.]

BETWEEN

JON SALOMON

(Plaintiff) Appellant

- and -

DARREN EDWARD FISHER

(Defendant) Respondent

- and -

F.A.I. GENERAL INSURANCE COMPANY LIMITED

(Defendant by Election)

Second Respondent

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 8th day of December 1993

For a pedestrian who is wearing dark clothing to walk across Brisbane Road, Ipswich, at 8.40 p.m. on a dark night is a risky thing to do. It becomes utter foolhardiness for him to do so when he knows there is a properly lighted pedestrian crossing only some 15 or 20 metres away that he does not bother to use. That summarises the plaintiff's conduct here. The most that can be said in his favour is that there was ordinary street lighting at some place which is not precisely identifiable between the pedestrian crossing and the point of impact.

Plainly, however, a driver in Brisbane Road would have had no reason to expect he would encounter a pedestrian trying to cross there, when the car he was driving had just traversed the pedestrian crossing. The plaintiff when struck was "standing" - which may perhaps mean no more than that he was upright - about 2 to 3 feet inside the white centre line and on the defendant's side of the carriageway.

He said he was engaged in watching the traffic approaching in the opposite direction and was waiting for a break in it to cross to the other side. No explanation is given of why he chose to stand so far inside the centre line instead of on it, where he might have hoped best to avoid vehicles travelling in either direction. He had, he said, satisfied himself that it was safe to do so by ensuring that there was no traffic within a reasonable distance coming toward him on the defendant's side of the road. Plainly he was seriously mistaken about this because the defendant's vehicle hit him almost at once.

There are several reasons why the plaintiff might have made such a mistake. The most compelling is to be found in the earlier history of his day. After he stopped work at 4 p.m. he first went to the Caledonian Hotel; then on to the Prince of Wales; he then visited the Metropolitan Hotel; and after that, the Cityview Hotel. The Cityview, he agreed, was where most of his time was spent. By that stage he had had 16 "pots" or 10 oz glasses of beer. When struck by the defendant's vehicle he was in the process of making his way from the Cityview to the Coronation Hotel. Presumably he felt like having a drink.

The judgment of a man who has had as much as that to drink is quite unreliable. It would not be possible for anyone to say with confidence how he would act or react in attempting at night to cross a road carrying traffic. Authority apart, I would not be disposed to upset the trial judge's conclusion that the plaintiff was wholly to blame. Accepting, however, that, according to previous decisions of authority, the responsibility cast upon the driver of the vehicle to avoid a pedestrian is a heavy one, I would apportion responsibility here as to two thirds to the plaintiff and one third to the defendant. Examples of apportionment, or refusal to apportion, at which I have looked for this purpose include Fehring v. Direct Despatch Co. [1962] Q.W.N. 26; Hobbelen v. Nunn [1965] Qd.R. 105, 114; Nolan v. Marsh Motors Pty. Ltd. [1965] Qd.R. 490; Elliott v. Lawrence, [1966] Qd.R. 440.

I would allow the appeal with costs, set aside the judgment below, and substitute a judgment for the plaintiff for $14,620 and the costs of the action.