Sharp v Carlin
[2015] QDC 288
•20 November 2015
DISTRICT COURT OF QUEENSLAND
CITATION: | Sharp v Carlin & Anor [2015] QDC 288 |
PARTIES: | ROSANNA MARIE SHARP (plaintiff) v MURRAY ALEXANDER CARLIN (first defendant) and AAI LIMITED ABN 48 005 297 807 TRADING AS SUNCORP INSURANCE (second defendant) |
FILE NO/S: | BD 1403/2014 |
DIVISION: | Civil |
PROCEEDING: | Trial |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 20 November 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 16 November 2015 |
JUDGE: | Samios DCJ |
ORDER: | 1. The plaintiff’s claim against the first defendant and the second defendant is dismissed. |
CATCHWORDS: | NEGLIGENCE – BREACH OF DUTY – PERSONAL INJURIES – ROAD ACCIDENTS – Pedestrian Legislation Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) s 141 Cases Caldwell v Deka (Unreported, Supreme Court of New South Wales Court of Appeal, Kirby, Clarke and Meagher JJ, 16 June 1993) Derrick v Cheung (2001) 181 ALR 301, [13] Knight v Maclean [2002] NSWCA 314, [66], [67] and [68] Stocks & McDonald Hamilton Co Pty Ltd v Baldwin [1996] NSWCA 1 |
COUNSEL: | Ms J McClymont for the plaintiff Mr R Lynch for the defendants |
SOLICITORS: | Shine Lawyers for the plaintiff Bray Lawyers for the defendants |
The plaintiff (Ms Sharp) claims against the defendants damages for personal injuries, loss and damage she suffered when she was struck by a bus.
Ms Sharp sues the first defendant who was the bus driver and the second defendant which is the insurer of the bus.
There is no dispute Ms Sharp suffered personal injuries, loss and damage as a result of the collision. The quantum of Ms Sharp’s damages is agreed at $175,000. Liability remains an issue.
Ms Sharp was born on 1 November 1988. At about 5.55pm on Friday 20 December 2010 she was in the process of walking to her place of work at Cue in the Wintergarden complex on the Queen Street Mall. She gave evidence that she got the bus in from the Gap to King George Square. She said there was always a lot of people on the Friday night, people shopping and there was always a lot of cars, a lot of people everywhere. She said there was people walking across Adelaide Street left, right and centre as well as cars. She noticed as the days approached Christmas before this collision there was more traffic and more people out on a Friday night. She said that is how it was on the day of her accident.
Ms Sharp said she came out of King George Square bus station. She walked down the road to her left. She decided to cross the road a little bit further down to her left after exiting the bus station and then she proceeded across the road. She observed the traffic was banked up a long way. The lights were red. Her immediate lane that she would be crossing was completely clear, and she decided that it would be safe to get across the road at that point. She said the lights were red right outside King George Square bus station where Albert Street is. Regarding the traffic that was banked up, she said it was a mixture of cars and buses. She said she saw a point in her mind that she thought would be safe to get through. She decided to go for it since the lights were red, and then when she got halfway across the road the lights turned green and all the traffic started moving and she looked to the left and where the buses pulled in and out of was completely clear and she just quickened her pace to get to the other side of the road because everything had just started to move.
There is no dispute Ms Sharp crossed from the western side of Adelaide Street intending to get to the eastern side of Adelaide Street. Further, there are a number of distances agreed between the parties. They are as follows:
(a)pedestrian crossing to stop 42 – 10 metres
(b)pedestrian crossing to Officeworks entrance/Brisbane Arcade – 50 metres
(c)stop 39 to approximate point of the collision – 106.4 metres
(d)bus stop 39 to bus stop 42 – 143.5 metres
(e)width of Adelaide Street – 13.3 metres
(f)gutter (the bus stop sign) of Adelaide Street to centre line – 6.75 metres.
It is also not in dispute the speed limit along this section of Adelaide Street is 40km/h.
Ms Sharp said there was one lane of traffic banked up at the lights. She believed there was only one lane of traffic on Adelaide Street to go in that direction from her left to her right. She said she was halfway at the white line when the light changed to green. She said the vehicles in front of her started to move at that point. She said the vehicles started to move at the very front of the lights but not where she was standing. The vehicles there were still stationary. Ms Sharp then in her evidence described how she moved across the road and described her speed or her pace. She said she walked to the middle of the road and then she wove in between – there was a car to her left and maybe a car to her right. She could not quite remember. And then she got to the edge of the car and then she looked to her left to see what was in – where the buses pull in and out of, and saw absolutely nothing. And then she quickened her pace to a brisk walk verging on a slow jog, maybe, to get to the other side of the pavement. She said she travelled three or four steps before she was struck. She was struck on her left hand side. She had no idea what had happened, because she was in mid-air before she knew anything had happened. She also said that when she decided to cross Adelaide Street she thought it was safe to do so. She had seen many people take the road the way she had. She said it was a calculated move. Since the traffic was all backed up and the lights were red, she thought that she could get across the road safely. She had crossed in a similar fashion before.
There is no dispute Ms Sharp crossed at a point outside an Officeworks business intending to reach the other side where the Brisbane Arcade is shown in the photographic exhibits.
Finally, Ms Sharp said that being summer it was still quite light out even though it was almost 6pm. She said there was a fair amount of light on the road. It was that time of day where you see half your cars with lights on and half your cars without lights on. She said she had no difficulty looking to her right or left along Adelaide Street before she started to cross.
When cross-examined Ms Sharp disagreed that from the point from which she reached the centre of the road until she was struck by the bus she did not stop at all. She said she quickened her pace once she reached the edge of the car and had looked and then she begun to walk, probably jog. She denied she did not stop from the point between her journey from the centre of the roadway till she collided with the bus. She said she stopped when she got to the middle where the white line was. She then wove herself. She then stopped on the other side of where the car to her left was and looked down to her left hand side and then kept going. She agreed she walked to the edge of the lane of traffic, so that is where she stopped. She said she then looked down the roadway to her left and saw absolutely nothing. Nothing at all. She said it was completely clear. She agreed that she then took three steps and was struck, or she collided at least with the bus. She said there was nothing that had impeded her view and she could see the full inside lane where the buses pulled in and out of. She could see everything extremely clearly. She said she could see down Adelaide Street between 50 and 100 metres and saw nothing at all. She said the sort of vehicle to her immediate left was a small car and that it was not a large 4WD. She said she could see over the top of it.
In further cross-examination Ms Sharp agreed that she was crossing between two stationary vehicles, one on her left and one on her right, and that there was about half a metre in between the stopped vehicles. She said her recollection of what was to her left is very clear. Her memory of what was to the right is not so much. Ms Sharp said she was very familiar with the area. She agreed there was sufficient room for a Brisbane City Council bus in the lane of traffic heading down towards the river. She also agreed there was sufficient room for a bus to be stopping on its left. She knew buses pulled in and out. She said if there had been a Brisbane City Council bus on her immediate left she would have looked to her left anyway. She agreed her view would have been a lot less but she did not agree her view would have been completely obscured. She agreed she would not have been able to see much at all if there had been a bus on her immediate left. She denied there was a bus on her immediate left as she proceeded through the lane of traffic. She also would not agree that there was a bus on her immediate right as well. While she conceded her memory of what was to the right is not as good as to the left, she said there was a car on her left and then there was a bus. She denied the suggestion she may have been hurrying at the time. She agreed she could have crossed in perfect safety at the pedestrian lights at the corner of Adelaide Street and Albert Street. However, she said that would have meant she had to walk to the right and across the road and instead she came out and walked to the left. She had seen before many people do exactly what she had done. She also agreed she could have walked down to the intersection of Adelaide Street and Edward Street and crossed at the pedestrian lights there. However, she said the path she chose was more direct. She was also wearing heels. Ms Sharp did not accept the suggestion that from the time she left the centre of the road to when she was struck, or collided with the bus, she did not stop at all. She denied she was running between the two vehicles and said she was briskly walking. Ms Sharp denied that she was in fact crossing between two stationary Brisbane City Council buses immediately prior to her colliding with the bus. She also denied she did not look at all before she commenced her final part of her journey across Adelaide Street.
When re-examined Ms Sharp said that to cross between two buses would make her extremely nervous. She would not do something like that. She also said she did not expect anything to be in that 50 to 100 metres down the section of Adelaide Street. She said she had seen how buses behave when they pull in and out of that bus stop. She said there was nothing pulled in, coming into, or coming out of any bus stops down that inner side of the road. She said she did not expect anything to be coming along there.
Senior Constable Kelly also gave evidence. At the time in question he was driving up Adelaide Street in a marked police vehicle with his partner. They were stopped at a red light. He was probably about the second car from the red light at that time. He said they were heading towards George Street. Regarding vehicles behind his police vehicle he said as he was driving up the road there would be another car behind him and he remembered as he was driving down the road he could see there was a bus behind. He could see the windscreen of the bus behind him. He could not say if it was one car or two car lengths behind him. His attention was drawn to an event occurring behind him. He looked in his left hand rear vision mirror and saw a flurry and thought Ms Sharp had been involved in an accident with the bus. He pulled his car straight over and ran back. He said it was directly across the road from the Officeworks in Adelaide Street. He said the area was covered by Brisbane City Council surveillance footage and he asked another police officer to make arrangements to view the footage within minutes of the actual incident. He did not view it himself. He went to view it but it started pixelating and he remembered a lady at the time saying that once its pixelating it is not going to be able to be viewed, it will not be able to be saved so he could not recover it and could not view it. He said he asked for a report from the council about why they told him there was footage and he went there and could not access it and he never got any reply. He said from his observations and from working as a police officer in the city it is common for pedestrians to walk across Adelaide Street in the area where Ms Sharp was hit without crossing at the pedestrian section away from the intersection. He said it is common because it is not unlawful. He said it definitely was his experience that there were pedestrians out and about on streets and crossing Adelaide Street after 5pm. It was more common that time of day, between 5pm and 6pm, for there to be quite heavy pedestrian areas in the city. He also said that it is commonly a higher rate of pedestrian traffic around Christmas time.
When he was cross-examined Senior Constable Kelly agreed it was exceedingly common for there to be a large number of buses in Adelaide Street at that time. That included Brisbane City Council buses. He also agreed there were a number of bus stops in that section of Adelaide Street. He said where Officeworks is on the opposite side there were all buses, the whole length of the road. On Adelaide Street, outbound side, it is not as many bus stops. He also agreed that the roadway was wide enough to accommodate two buses, one that is stopping and one that is in the lane of traffic. He agreed it was quite common at that time of night for there to be buses in the lane of traffic and there would be buses that are pulling up and stopping at the stops along Adelaide Street. He agreed there was a bus in the line of traffic behind him when he looked in his rear vision mirror.
The version given by the bus driver to the police was tendered in evidence. He stated to the police he stopped at bus stop 39 approximately 50 metres from the accident. He discovered he was at the wrong bus stop and he wanted to go further down to bus stop 42. The right side of the road was at a standstill and he drove up the left side at approximately 10km/h and as he approached Brisbane Arcade from his right a lady has run between two stopped buses to cross the road and has run into the front driver side of the first defendant’s bus. He said that he immediately hit the brakes and took about 3m to stop. He said that he got out of the bus and saw the lady was on her back with her feet facing the direction of travel. When asked what he thought caused the accident he said the lady running between two buses to cross the road. When asked could he have done anything to prevent the accident he answered in the negative.
The bus driver, Mr Carlin, gave evidence. At the time he would have been employed as a bus operator for about eight years. The route he was taking was from Stafford through to Bardon which takes the route through the city. It took him down Adelaide Street towards George Street. Regarding what the traffic was like in the area at the time he said it was not especially heavy and it was not especially light. He would say it was what you would expect to drive down at that time of day. He thought it was pretty typical of that. The lighting was good. The sun had not gone down. He said he was proceeding down Adelaide Street towards Albert Street with one passenger. He said the passenger rang the bell and he slowed down to stop to drop him at the previous bus stop 42. He said the incident took place in between those two stops. He said he realised that he was actually supposed to be stopping at the next stop and he had not come to a complete stop. He had basically slowed right down as if to sort of alight this passenger from the bus and realising that he was at the wrong stop he just took his foot off the brake and basically just rolled at a slow speed towards stop 42. He said there were three buses waiting at a red light and then towards the centre line and through the bus stop on the left of those buses is a clear path to stop 42. He said he would have been doing less than 15km/h. He said as he was between stop 39 and 42 he was rolling through there quite slowly and he thinks between the second bus and the third bus there are gaps between the buses. He said this lady has come, more or less, at a run between the gaps in bus two and bus three and basically, pretty much, run into the front right hand corner of his bus. He said he first observed her as she had sort of emerged from the gap in the two buses on the right. He said she came from where he was looking probably at a 30 degree angle and that when he saw her he hit the brakes as hard as he could. He said he had not seen her at all before. He said he was looking straight ahead as he was travelling down towards bus stop 42. He said the bus stopped and the front of the bus dipped. He said it took a short distance to stop which he estimated to be two to three metres. He said a split second before the lady hit the bus, or he hit her, he heard a bang. He said she was in a sort of defensive manoeuvre. Mr Carlin said that he completed an incident report as part of his duties. The incident report is in evidence and shows a diagram depicting the movement of a pedestrian between two buses. Mr Carlin has also written in this report “proceeding along Adelaide Street at rear of stop 42 the injured pedestrian has run between two stopped buses into path of my bus”.
When cross-examined Mr Carlin accepted he was aware that as a bus driver if his bus were to collide with a pedestrian the pedestrian could be very badly injured, or even killed. He accepted that as part of his role as a bus driver he would exercise constant vigilance for presence of pedestrians on the road around him. He accepted that that applied to pedestrians that he could see, but also to pedestrians that might be obscured from view in some way. He accepted it was common for pedestrians to try and cross the street away from pedestrian intersections, and this included Adelaide Street. He also accepted that one of the circumstances in which pedestrians frequently cross the road is when traffic might be stopped at lights and pedestrians think that they can get through stationary vehicles and get across the road that way. He accepted this applied when traffic lights were red and the pedestrians may be crossing before the pedestrian crossing. He agreed he may not see pedestrians who are crossing through stationary traffic before your bus gets to them. He agreed these circumstances mean that you need to be very careful in how you choose to drive your bus and aware of your position on the road. He agreed that the volume of pedestrians increased markedly after 5pm, lasting up until about 6pm or sometimes later on busy days. However, on the day in question, he would say that the volume of traffic and pedestrians was consistent with any other day of the week at that time. Further, he said he was not stopping at any stops between stop 39 and stop 42. However, he said he was not passing every bus stop leading to number 42. It was only 39 and 42, not every bus stop before it, that he was in the left hand side of the road. He agreed he drove on the left side of the roadway, adjacent to the curb, from stop 39 to stop 42. He said the right side of the road was at a standstill. He said he drove up the left side at approximately 10km/h. When it was suggested to him he was taking a shortcut he denied that he was. He said it was normal for buses to proceed up the inside of those buses to a bus stop. However he accepted that there was nothing stopping him from waiting behind the stationary cars or vehicles until the lights went green and then he could have driven down the road in the ordinary fashion. He agreed that if there were cars that he was passing he would have had a better view of pedestrians coming from the right. He said if there was a car to the right of the bus he would have seen it and he expects Ms Sharp would have seen him as well. However, he said there was no car there. He agreed because he was sitting in an elevated seat as a bus driver he could see a pedestrian if they walked in front of a car to the front right of his bus. However, he would not accept that is what in fact happened. He said she came between two buses. There were no cars there. He also would not accept that Ms Sharp stopped before entering the roadway along which his bus was travelling. He did not accept that she stopped in order to glance to her left. He would not accept that she took something like three steps out into the area he was driving before she was struck by the bus. He said she did not stop at the corner of the buses and she did not look. He said he saw her for enough time for him to see that she was at a striding pace. He said he would describe her as striding; long strides. He said it is difficult to say whether it was striding or running. He would say it would be closer to running than walking.
Finally, Senior Constable Schmidt gave evidence. On the day in question he was stationed doing general duties at the City Police Station at 46 Charlotte Street. He was called upon to investigate the accident. He said other police were at the scene, including Senior Constable Kelly. He said there was a message through police communications that the incident had been captured on close circuit television at the traffic management centre so he volunteered to attend that centre on the day shortly after the incident. He reported by email what was depicted on the CCTV. The CCTV is not available to be viewed by the court. What he viewed he gave in evidence by refreshing his memory from the email. He stated:
viewed the footage from the Brisbane Metropolitan Transport Management Centre, BMTMC. It shows the pedestrian running from the eastern curb of Adelaide Street towards the western curb. Buses are queued – buses are queued up in lane two, southbound. Pedestrians run between the – pedestrian runs between the stationary buses. As she steps into lane one, the VOI is travelling along lane one and hits her. You can’t see the impact, as the other buses obstruct your view, but you see her running between the stationary buses.
He said that accorded with his memory, however, there was one error. He had the pedestrian running from east to west, whereas it is west to east. He also said he should have said that the pedestrian had run from the side that Officeworks is on.
When cross-examined Senior Constable Schmidt said the CCTV camera was positioned on a streetlight pole above the traffic lights controlling the intersection of Adelaide Street and Albert Street about 6 to 7 metres off the ground. It effectively looks down and northbound towards Fortitude Valley. It is situated on the King George Square side of the intersection. It effectively looks over the top of the vehicles that are on the roadway. He agreed he made an error referring to two lanes as one and two because there are no two lanes. When the proposition was put to him that the camera may not reveal a vehicle between the two buses he said that the vehicle would have to be significantly off-centre and in the slip lane. The suggestion was made that the vehicle could have been between the two buses and not picked up by the camera and Senior Constable Schmidt agreed it was possible. However, he would not accept that there was a car positioned between the two buses in the footage that he saw that was recorded on 10 December 2010. He said that was not his recollection. His recollection was between two buses. He acknowledged that it is now over five years and he cannot be 100% certain, but that was his recollection of it. Regarding Ms Sharp running, Senior Constable Schmidt said he would describe it like a jog. He said she was not walking; she was not sprinting; she was jogging.
There is a conflict in the evidence of Ms Sharp compared to the evidence of Mr Carlin and Senior Constable Schmidt.
Certainly Ms Sharp could feel a sense of grievance that the CCTV footage is not available for the trial of her claim. At the same time the defendants could contend the CCTV footage could support Mr Carlin’s and Senior Constable Schmidt’s evidence.
However, when Ms Sharp gave evidence she said that before she collided with the bus she stopped in the middle where the white line was. She said she then wove herself and stopped on the other side where the car to her left was and looked down to her left hand side and then she kept going. She said she walked to the edge of the lane of traffic and stopped and then she looked down the roadway to her left and saw absolutely nothing. Nothing at all. It was completely clear. She said she then took three steps and was struck. She said there was nothing impeding her view when she looked. She said she could see the full inside lane where those buses pulled in and out. She could see everything extremely clearly. She said she could see between 50 and 100 metres down Adelaide Street. She said she saw nothing at all.
I consider Ms Sharp’s evidence about stopping and looking to the left and seeing nothing between 50 and 100 metres down Adelaide Street cannot be correct because the bus must have been on Adelaide Street heading towards where Ms Sharp was about to cross.
While I do not consider Ms Sharp was untruthful when giving that evidence I consider she was at least unreliable in that respect. I consider that if she was unreliable in that respect, she could be unreliable on other aspects of her evidence.
In addition, although Senior Constable Kelly said he saw behind him a vehicle and behind that a bus, I do not accept that supports Ms Sharp’s evidence that there was a vehicle to her left when she reached the centre of the road. I do not accept Senior Constable Kelly’s evidence was that he saw a vehicle immediately to the left of Ms Sharp.
Further, Mr Carlin gave a contemporaneous account to the police that Ms Sharp came from between two buses. While he may have been saying that to deflect blame from himself, Mr Carlin is supported by Senior Constable Schmidt who said the CCTV footage showed Ms Sharp running between two buses.
It is the case Senior Constable Schmidt made errors in his report. He had Ms Sharp moving from east to west rather than from west to east. Further, he had the southbound lane in Adelaide Street comprising of two lanes, whereas he agreed one of those lanes could only be described as a slip lane. However, I do not consider these errors are reasons to reject Senior Constable Schmidt’s evidence.
It is correct Senior Constable Schmidt said Ms Sharp jogged and Mr Carlin said Ms Sharp was striding, and striding rather than walking, when describing how Ms Sharp moved between the buses. However, these descriptions offered in cross-examination do not persuade me to reject the evidence of Mr Carlin and Senior Constable Schmidt because I do not consider the descriptions they gave are inconsistent with describing what they saw to the police in Mr Carlin’s case and in his incident report and in his email in Senior Constable Schmidt’s email. That is, I consider when pressed a person who describes someone running may qualify the description as jogging or striding. Even Ms Sharp described her movement as a brisk walk verging on a slow jog.
Mr Carlin did say in his incident report the bus was travelling at approximately 10 km/h whereas in his evidence he said the speed was no more than 15 km/h. I do not accept the difference is a reason to reject his evidence.
In the circumstances, I accept the evidence of Mr Carlin and Senior Constable Schmidt.
Therefore, I find as Ms Sharp crossed Adelaide Street and before being struck by the bus she passed between two stationary buses. I find the bus on the immediate left of Ms Sharp would have obscured Mr Carlin’s view of Ms Sharp as she moved from the left hand corner of the stationary bus and into the path of the bus driven by Mr Carlin. I find Ms Sharp did not stop at the centre of the roadway, nor did she stop on the other side of where the bus to her left was, nor did she look to her left hand side to check for traffic coming from her left. I find Ms Sharp took strides that were closer to running than walking as she moved from the centre of the roadway into the path of travel of the bus driven by Mr Carlin. I find the bus was being driven by Mr Carlin at about 15km/h when he saw Ms Sharp. I find Mr Carlin was looking ahead of him and saw Ms Sharp at about an angle of 30 degrees to his right when Ms Sharp emerged in front of the bus he was driving. I find Ms Sharp was about two or three metres away from the bus driven by Mr Carlin when Mr Carlin saw Ms Sharp. I find Mr Carlin drove the bus at about 15km/h over a distance of 143.5 metres in the left hand side of Adelaide Street adjacent to the lane for vehicles travelling south towards the intersection of Adelaide Street and Albert Street. I find that Mr Carlin had no opportunity to see Ms Sharp earlier than he did, nor to take any action to avoid a collision other than the heavy braking he in fact engaged in. Therefore, I find Mr Carlin was keeping a proper lookout and was not driving the bus at a speed that was excessive in the circumstances.
In Derrick v Cheung (2001) 181 ALR 301 the High Court held a motorist who was driving between 10-15km/h, under the prescribed speed limit in a suburban street, and subsequently collided with a child who was 21 months of age who had suddenly emerged from between two parked vehicles, was not guilty of negligence. The High Court held that there was no particular perceivable risk which the appellant should have taken into account but did not. The High Court said at paragraph 13:
Even if the inference which the trial judge drew, that if the appellant’s speed had been slower by a few kilometres per hour she would have been able to avoid the collision, was more than mere speculation, it is still not an inference upon which a finding of negligence could be based. Few occurrences in human affairs, in retrospect, can be said to have been, in absolute terms, inevitable. Different conduct on the part of those involved in them almost always would have produced a different result. But the possibility of a different result is not the issue and does not represent the proper test for negligence. That test remains whether the plaintiff has proved that the defendant, who owed a duty of care, has not acted in accordance with reasonable care.
There is no doubt Mr Carlin owed a duty of care to Ms Sharp. However, I find on the evidence before me Ms Sharp has not proved Mr Carlin breached his duty of care to act in accordance with reasonable care.
Even though Mr Carlin said he was looking straight ahead when he was travelling towards the bus stop and Ms Sharp emerged from where he was looking probably at a 30 degree angle, I do not accept that is evidence of a failure to keep a proper lookout. That is, I do not accept for Mr Carlin to be exercising reasonable care he had to have his attention at all times to the right in case someone emerged from between the two buses to his right.
However, Ms Sharp claims that Mr Carlin breached section 141 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009.
That section provided at the time of this accident:
141 No overtaking etc. to the left of a vehicle
(1)A driver (except the rider of a bicycle) must not overtake a vehicle to the left of the vehicle unless—
(a)the driver is driving on a multi-lane road and the vehicle can be safely overtaken in a marked lane to the left of the vehicle; or
(b)the vehicle is turning right, or making a U-turn from the centre of the road, and is giving a right change of direction signal and it is safe to overtake to the left of the vehicle; or
(c)the vehicle is stationary and can be safely overtaken to the left of the vehicle.
Maximum penalty—20 penalty units.
As I understand section 141 subsection (1) paragraph (c) the section exempts a driver driving to the left of a vehicle which is stationary and can be safely overtaken to the left of the vehicle. I find that was the position immediately before the bus collided with Ms Sharp. The bus to the right of Mr Carlin’s bus was stationary and he could safely overtake to the left of that bus.
I consider Mr Carlin did not fail to exercise reasonable care by driving the bus where he did on the roadway, particularly as he was driving it slowly.
In Knight v Maclean [2002] NSWCA 314 the plaintiff sustained injuries when she was struck by the defendant’s motor vehicle as the defendant drove along a road which the plaintiff attempted to cross on foot. The primary judge found in favour of the plaintiff but reduced her damages by 40%. In upholding the driver’s appeal against the primary judge’s finding of negligence, Heydon JA (as he then was) said:
[66] So here, the defendant’s driving was intrinsically careful. He was not exceeding the speed limit; he was moving with the traffic flow; there is no suggestion he was not keeping a proper distance from the car in front; if he did not see the start of the plaintiff’s journey through a failure to look to the left, or a failure to appreciate the extent to which his view might be blocked, he was in no worse a position than the defendant in Derrick v Cheung, and indeed in a better position because of the existence of lane two to his left. He was entitled to drive with his eyes ahead of him until he noticed something to the left which called for greater concentration on the left. There was nothing on the left calling for greater concentration until the sudden emergence of the plaintiff, and that was too late to give the defendant any opportunity to avoid the collision. A finding that the defendant was liable would be to create a form of strict liability, not to recognise a form of liability in negligence.
[67] The trial judge’s conclusion of liability in this case rested on the proposition that the defendant was obliged to “drive in anticipation of a pedestrian crossing the road in such a fashion as to require him to adjust his speed downwards if he and the pedestrian were to continue”. That would have called for a very low speed indeed. Indeed, if the defendant was obliged to drive in anticipation of the emergence of pedestrians like the plaintiff at a fast walk, he would also have been obliged to drive in anticipation of pedestrians emerging at a run, which would call for a lower speed still. Speeds of such slowness are incompatible with the reasonable use by motorists of Parramatta Road, which is a substantial highway between the centre of the city of Sydney and the city of Parramatta.
[68] It is not the law that a driver complying with the minimum requirements of the law of negligence must drive in such a way as to anticipate everything that a pedestrian might do at all stages of every journey, or to be in a position to reduce speed to levels which will avoid any risk of a collision at all stages of any journey. Yet in the circumstances of the present case the trial judge’s test would entail that duty.
In my opinion what Heydon JA said in Knight v Maclean is relevant to the present circumstances. That is, I do not accept that Mr Carlin had to reduce the speed of the bus even further to take into account the possibility that a pedestrian may appear between two stationary buses.
It was suggested by Ms Sharp that Mr Carlin should have been aware of Ms Sharp’s presence because she would have been seen entering Adelaide Street from the western side. I do not accept the evidence supports such a finding. The trial was not really conducted that way.
I was referred by Ms Sharp to Caldwell v Deka (Unreported, Supreme Court of New South Wales Court of Appeal, Kirby, Clarke and Meagher JJ, 16 June 1993) where a pedestrian emerged into a lane of traffic from between stationary vehicles waiting at lights. A motor vehicle travelling 30-40km/h struck the pedestrian causing serious injuries. The motorist agreed that he was watching traffic lights waiting for them to change from red to green. It was accepted there was a tendency for pedestrians near traffic lights to cross between traffic. It was held by majority that the trial judge erred in rejecting the plaintiff’s case that the driver concentrated on the traffic lights to the exclusion of the risk of pedestrians. The majority held in the circumstances, negligence to some degree on the part of the driver, was established. However, in the present matter I consider Caldwell v Deka is distinguishable because I consider in the present matter it has not been demonstrated that Mr Carlin did anything that was a breach of the duty of care.
Also in Stocks & Anor v Baldwin [1996] NSWCA 1 a pedestrian was crossing a busy street, having three lanes on each side of a median strip, some 40 metres from traffic lights. The pedestrian after crossing the median strip moved through banked up vehicles in the middle lane into the curb side lane. She was struck down by the defendant who was driving his car at about 40km/h. The defendant stopped about four metres from the impact. The trial judge found the defendant negligent for the reason that he was travelling at an excessive speed in the circumstances and found the plaintiff contributory negligent for the reason that she did not check, or did not check adequately, whether it was safe to proceed from the middle lane into the curb side lane. He apportioned 40% of the responsibility for the accident to the pedestrian plaintiff. The defendant driver appealed. His appeal was dismissed. The Court of Appeal held the trial judge was entitled to find that the defendant was driving at an excessive speed in the circumstances.
In my view Stocks & Anor v Baldwin is distinguishable from the present matter because there is no evidence Mr Carlin was driving the bus at an excessive speed in the circumstances.
Therefore, I find the plaintiff has failed to prove the first defendant breached his duty of care to the plaintiff in the circumstances.
I therefore dismiss the plaintiff’s claim against the defendants.
I will hear the parties on the question of costs.
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