State of New South Wales v Colm McGuirk

[2015] NSWLC 1

Local Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of New South Wales v Colm McGuirk [2015] NSWLC 1

Hearing dates:

3 February 2015

Decision date:

11 February 2015

Jurisdiction:

Civil

Before:

Assessor Olischlager

Decision:

1. Verdict for the defendant.

2. Order the plaintiff to pay the defendant's costs of $767.00 within 28 days.

Catchwords:

CIVIL LIABILITY - vehicle collision - duty of care owed by pedestrian - contributory negligence

Legislation Cited:

Civil Liability Act 2002 (NSW), s 5B
Road Rules 2014 (NSW), r 236(1)

Cases Cited:

Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1
Cynthia Gaye Anne Shaw by her Next Friend Phillip John Lyster v Monley [1999] WADC 143
Jones v Bradley [2003] NSWCA 81
Pennington v Norris [1956] HCA 26; 96 CLR 10
Teubner v Humble [1963] HCA 11; 108 CLR 491
Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Colm McGuirk (Defendant)

Representation:

Robertson Saxton Primrose Dunn Solicitors (Solicitor for the Plaintiff)
Drayton Sher Lawyers (Solicitor for the Defendant)

File Number(s):

2014/00219543

Publication restriction:

Nil

​JUDGMENT

1. This is a claim brought by the State of New South Wales on behalf of NSW Police seeking to recover damages to a police motor vehicle. The damages arose in a collision on 25 February 2011 between the police motor vehicle and the defendant, Colm McGuirk, who was a pedestrian.

2. Mr McGuirk was injured in the collision and has no recollection of the events that immediately led to the collision. Accordingly, the account of what occurred is based on the statements provided by police officers in the plaintiff’s vehicle as well as the driver and passenger in a following taxi vehicle. The facts are largely uncontroversial.

3. At approximately 12:05 am on  25 February 2011 the police motor vehicle driven by Constable Wensemius was travelling in a westerly direction along Old South Head Road at Bondi NSW. Constable Cohen was in the passenger seat. The police vehicle was travelling in the right hand lane of two lanes in a westerly direction at a speed of between 40 to 50 km per hour. A taxi vehicle driven by Mr Chaaya with a passenger, Ms Gustafsson, was travelling approximately 50 m behind the police vehicle. The speed limit along this section of Old South Head Road was 50 km per hour. Although it was dark there was street lighting in the area and the police vehicle had its headlights illuminated.

4. As the police vehicle entered the intersection of Old South Head Road and Penkivil Street, Mr McGuirk ran onto the roadway of Old South Head Road from a south westerly direction in front of the approaching police vehicle in an attempt to cross the roadway. He was struck on the right hip by the front left-hand side of the police vehicle and was propelled onto the bonnet; smashing the windscreen and then landing on the road surface.

5. Mr McGuirk had a number of alcoholic beverages earlier that evening. He was intoxicated and appears not to have been aware of the presence of the police vehicle at any moment prior to being struck.

6. The driver of the police vehicle, Constable Wensemius, gave the following evidence:

“As I was approaching Penkivil Street, Bondi, I saw that the traffic light facing me was green. I had my foot on the accelerator as I was on an incline up the hill, however my speed was not increase [sic]. I did not see any persons on either side of the road. As I began to enter the intersection, I suddenly saw a figure less than a metre from the front nearside of Eastern Suburbs 36 illuminated by the headlight. I only glimpsed the person briefly, but I saw that it appeared to be a made [sic] in his 20s [sic] with short shaved hair.”

7. The passenger, Constable Cohen, gave the following evidence:

“At this time we approached the intersection of Penkivil Street and Old South Head Road, Bondi, when suddenly I caught a glimpse from [sic] my peripheral vision from my left hand side and saw what appeared to be a male running towards our vehicle on Old South Head Road. The male was running upon Old South Head Road and he appeared to have come from Penkivil Street and was running directly towards us in a northerly direction.”

8. The evidence of Mr Chaaya and Ms Gustaffson travelling behind in the taxi has limited value in that neither witness saw Mr McGuirk prior to the collision or the collision itself. Their evidence is corroborative of the speed at which the police vehicle was travelling. They were following the police vehicle for a period of time prior to the collision.

9. Mr McGuirk suffered injuries which were fortunately not life threatening. The cost of repairing the police vehicle together with the loss assessment fee was $6,877.11. The plaintiff seeks to recover those costs.

10. The issues between the parties to be resolved by the Court, are:

1. Whether the defendant breached a duty of care owed to the plaintiff in causing the collision; and

2. If so, whether the plaintiff’s driver was contributory negligent in causing the collision and the degree to which the plaintiff’s driver was so contributory negligent.

Duty of Care owed by Pedestrians

11. The plaintiff submits that there is no case authority that establishes a duty of care on the part of a pedestrian owed towards motorists.

12. The plaintiff refers to the case of Cynthia Gaye Anne Shaw by her Next Friend Phillip John Lyster v Monley [1999] WADC 143, in which LA Jackson DCJ stated:

“As between a motorist on the one hand and a pedestrian on the other, the notions of negligence are different. Pennington v Norris [1956] HCA; (1956) 96 CLR 10, 16. A motorist has a duty of care to a pedestrian (or indeed other road user) to so use the motor vehicle as to take all reasonable precautions to avoid injury or damage to others. That duty, inter alia, is to keep a proper lookout, to drive at an appropriate speed, to brake or steer clear of others using the road, or to warn others of any impending danger. The notion of contributory negligence by a pedestrian is expressed a little differently. The pedestrian is not seen to owe a duty of care to the motorist so as to avoid damaging the motor vehicle but rather has a duty of care to take reasonable care for his or her own safety.” [Emphasis added].

13. In Pennington v Norris [1956] HCA 26; 96 CLR 10, the High Court distinguished between the relative responsibilities of a motorist and a pedestrian when assessing apportionment of liability between the driver of a car and a pedestrian involved in a collision. Motor vehicle drivers failing to take care have the potential to cause considerable harm to road users whereas pedestrians failing to take care are unlikely to cause substantial harm to anyone other than themselves.

14. On behalf of the plaintiff it is argued that the duty of care owed by a pedestrian extends to road users. The plaintiff submits that the duty owed by pedestrians to road users is reflected in Road Rules 2014 (NSW). In particular rule 236(1) of the Road Rules provides:

"236   Pedestrians not to cause a traffic hazard or obstruction

(1) A pedestrian must not cause a traffic hazard by moving into the path of a driver. 

Maximum penalty: 20 penalty units.”

Analysis

15. Any claim based on tortious negligence requires the plaintiff to establish that the defendant owed them a duty of care.

16. Common law statements regarding the duty of care owed by pedestrians are consistently couched in terms of the obligation of pedestrians to take care of their own safety.

17. In Teubner v Humble [1963] HCA 11; 108 CLR 491, Windeyer J at 504 said, “the carelessness of a pedestrian is carelessness for his own safety rather than a disregard of the safety of others”.

18. In Jones v Bradley [2003] NSWCA 81 at [105], Santow JA with Meagher and Beazley JJA agreeing described the negligence of a pedestrian in the following terms, “...[the] actions involved a clear departure from the standard of care expected of a reasonable pedestrian to take care of his or her own safety”.

19. The duty of pedestrians to take care of themselves invariably only arises in claims for contributory negligence as opposed to a claim of negligence.

20. In Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1 at [21] Gleeson CJ, McHugh, Gummow and Hayne JJ observed:

“At common law, contributory negligence consisted in the failure of a plaintiff to take reasonable care for the protection of his or her person or property … Although conduct amounting to contributory negligence may also constitute the breach of a duty which the plaintiff owes to the defendant, a plaintiff can also be guilty of contributory negligence notwithstanding that he or she owes no duty to the defendant or any third person. A pedestrian, for example, owes no duty to a speeding driver to avoid being run down but is guilty of contributory negligence if he or she fails to take reasonable care to keep a proper lookout for speeding vehicles … A person may also be guilty of contributory negligence even though the negligence of the plaintiff did not contribute to the accident which caused the damage. That is because contributory negligence is concerned with the failure of the plaintiff to protect his or her person or property against damage and not with whether the failure contributed to the accident.” [Footnotes omitted]. 

21. There is no doubt that Mr McGuirk failed to take reasonable precautions for his safety. However, the failure to take reasonable care for one’s own safety is non-tortious negligence in that there is no breach of a duty owed to a third party. Negligence, of itself, does not give rise to a right to a third party to sue for damages.

22. At common law no duty was owed by Mr McGuirk to the plaintiff.

23. As issues relating to negligence are now determined by reference to the Civil Liability Act 2002 (NSW) it is necessary to have regard to the provisions of that Act. In particular, s 5B of the Civil Liability Act deals with the consideration of duty of care, and provides:

"5B   General principles

(1)  A person is not negligent in failing to take precautions against a risk of harm unless:

(a)  the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b)  the risk was not insignificant, and

(c)  in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2)  In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a)  the probability that the harm would occur if care were not taken,

(b)  the likely seriousness of the harm,

(c)  the burden of taking precautions to avoid the risk of harm,

(d)  the social utility of the activity that creates the risk of harm."

24. The provisions of the Civil Procedure Act largely reflect common law principles. As noted by Young CJ in Eq in Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505 at [530], s 5B of the Civil Procedure Act “...seems to embrace substantially what was once called the 'Shirt Calculus' (see Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 - 48)”.

25. The Court is of the view that s 5B of the Civil Procedure Act does not give rise to a duty of care being owed by pedestrians to motorists. Pedestrians are vulnerable when entering onto the roadway. Motor vehicles are potentially lethal weapons. The risk of harm of property damage arising from a collision with a pedestrian is insignificant in comparison to the seriousness of the harm of personal injury likely to be suffered by a pedestrian. A reasonable pedestrian will be focused upon protecting their own safety rather than avoiding causing damage to a motor vehicle. What is foreseen is the risk of death or serious injury. It is that consideration that guides a pedestrian’s conduct rather than the possible consequential minor damage caused to a motor vehicle.

26. The plaintiff relies on the defendant’s breach of the Road Rules. That does not assist the plaintiff. While a breach of the Road Rules may be prima facie evidence of negligence, the Road Rules do not establish categories of duty of care. In the present case, the Court accepts that Mr Guirk was negligent in causing a hazard to the plaintiff, however, that negligence is not actionable. In a claim of negligence, tortious liability requires the establishment of all three elements of the claim; a duty of care owed to the plaintiff, a breach of that duty and damages.

27. The plaintiff has failed to establish that the defendant owed it a duty of care. The Court will enter a verdict in favour of the defendant and order that the plaintiff pay the defendant's costs of $767.00 within 28 days.

Assessor Olischlager

Local Court (sitting at Sydney)

11 February 2015

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Amendments

24 March 2015 - Insertion of "a" in "This is claim" Paragraph 1

Decision last updated: 24 March 2015