Sung v Patterson

[2001] NSWCA 210

CITATION:	Sung v Patterson [2001] NSWCA 210
FILE NUMBER(S):	CA 40457/00
HEARING DATE(S):	29 June 2001
JUDGMENT DATE:	29 June 2001
PARTIES :	David Sung (Appellant) v Alexander Patterson (Respondent)
JUDGMENT OF:	Beazley JA at 14; Giles JA at 15; Davies AJA at 1

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	3375/99
LOWER COURT JUDICIAL OFFICER :	Rolfe DCJ

COUNSEL:	A: Mr B McManamey R: Mr L Morris QC with Mr W Fitzsimmons
SOLICITORS:	A: Turner Freeman R: Abbott Tout
CATCHWORDS:	District Court - motor vehicle accident - pedestrian hit by car whilst running across road at crossing controlled by lights - whether respondent had time to avoid accident
CASES CITED:	Stocks v Baldwin (1996) 24 MVR 416 Clarke v Freund (1999) 29 MVR 361
DECISION:	Appeal dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40457/00
DC 3375/99

BEAZLEY JA

GILES JA

DAVIES AJA

FRIDAY 29 JUNE 2001


DAVID SUNG v ALEXANDER PATTERSON

JUDGMENT

1    DAVIES AJA: This is an appeal from the judgment of a judge of the District Court of New South Wales, his Honour Judge R A Rolfe. The learned trial Judge dismissed a claim brought by David Sung, the appellant, for damages arising out of a motor vehicle accident which occurred on 5 September 1995.

2    The accident occurred at the intersection of First Avenue, a street which runs east-west, and East Parade, which runs north-south. The intersection is controlled by traffic lights. The appellant was a pedestrian who had been crossing from the southern side of First Avenue to the northern side. First Avenue has a median strip. At the traffic lights, it has four lanes in its southern section, a left-hand turning lane, two continuing lanes and a right-hand turning lane. The appellant was in the middle of the second continuing lane when he was struck by the respondent's vehicle which was travelling west into the intersection.

3    The appellant gave several versions of the incident, all of which the trial Judge rejected. His Honour said, "the plaintiff has given a number of different accounts of how the accident occurred, all of which are untruthful". The trial Judge relied principally upon the evidence of Mr Stephen Murphy. The trial Judge described Mr Murphy's evidence in this way:-

"Mr Murphy said that he was travelling westerly on First Avenue towards East Parade and came to a stop at the traffic lights. There were four lanes travelling west. Mr Murphy's vehicle was stopped in the second lane because the lights were red. There was one vehicle in front of him and it was a van. Its windows were locked up. As best as he could recall, there was one vehicle behind him and one vehicle in the left hand turning lane. There was no vehicle which was stopped in lane three.
Mr Murphy observed the plaintiff walking towards the traffic lights with the apparent intention of crossing the street. As the plaintiff got closer to the lights he gained walking speed and, without pausing, ran across the intersection as the lights changed. He ran in front of the van in front of Mr Murphy's vehicle at which point Mr Murphy momentarily lost sight of the plaintiff. The plaintiff reappeared in Mr Murphy's line of vision as the defendant's vehicle appeared on Mr Murphy's right hand side. The plaintiff was running and the defendant's vehicle struck him and knocked him over. Mr Murphy said the plaintiff was struck by the front grill of the defendant's vehicle on the left hand side but close to the centre.
…
In cross examination, Mr Murphy said that the traffic lights (for his vehicle) were red when he first saw the plaintiff. The plaintiff was close to the kerb when he started to speed up. Mr Murphy inferred that the 'don't walk' sign started to flash for the plaintiff because the plaintiff began to hurry up. At the point when Mr Murphy noticed the plaintiff hurry up, the light facing Mr Murphy was still red. It was possible that when the plaintiff stepped off the kerb that the traffic light facing Mr Murphy was still red. The car in the left hand turning lane let the plaintiff cross the road. Mr Murphy observed the defendant's vehicle slowing down to stop but it speeded up again as the light turned to green. When he first observed the defendant's vehicle, the defendant's vehicle was just behind Mr Murphy's vehicle and Mr Murphy observed the defendant's vehicle in his side mirror. The defendant's vehicle started to accelerate when it was alongside Mr Murphy's vehicle, about one car length or even closer to the intersection. Mr Murphy was quite clear in his recollection that the defendant's vehicle only accelerated when the lights changed and that was at a point when the defendant's vehicle was alongside Mr Murphy's vehicle one car or less back from the intersection. The acceleration was gradual until the collision occurred."

4    The trial Judge made this finding:-

"I find that when the defendant's vehicle collided with the plaintiff on the pedestrian crossing the traffic lights facing the defendant were green. I also find that the plaintiff ran across the intersection as the traffic lights facing Mr Murphy and the defendant changed from red to green. This meant that, at the very least, the 'don't walk' sign had been flashing as the plaintiff arrived at the kerb. I find that the pedestrian light stopped flashing 'don't walk' and changed to 'don't walk' as the plaintiff ran off the kerb or immediately thereafter. This is obvious because Mr Pearson flashed his lights to warn the plaintiff that he was in extreme danger. … I also accept the defendant's evidence that he was only travelling at 35kph as he approached the intersection and was slowing down and did not accelerate until after the lights changed green."

5    The trial Judge found that there had been insufficient time for the respondent to avoid the accident. In dealing with the evidence of Mr Grant Johnston, an expert called on behalf of the appellant, the trial Judge said:-

"… Mr Johnston conceded in cross examination that if the plaintiff had been running, on the defendant's first view of him given the location of the other vehicles which were stationary at the lights, then the defendant would have had only 0.72 seconds to observe the plaintiff. It was conceded by Mr Johnston that this was insufficient time for the defendant to do anything to prevent the accident occurring at the speed of 35kph. In other words, the accident was inevitable."

6    In the appeal, counsel for the appellant relied upon the decision of the Court of Appeal in Stocks v Baldwin (1996) 24 MVR 416. I need not set out the relevant passages from the judgment of Mahoney P in that case. The passages are well known and have frequently been cited and applied. Counsel submitted that a prudent driver would have taken account of the fact that pedestrians sometimes act carelessly and that pedestrians crossing a road may include people hurrying against the lights or the aged or infirm. Counsel submitted that the respondent should not have commenced to accelerate when the vehicles to his left remained stationary and when his vision to the left was obscured. Counsel pointed to the fact that, in Stocks v Baldwin, the Court considered that the defendant's vehicle had been travelling too fast, at about 40km per hour, when cars in the adjoining lane were stationary and there was a possibility that a pedestrian might be crossing the road.

7    Counsel also referred to Clarke v Freund (1999) 29 MVR 361. In that case, Handley, Sheller and Beazley JJA applied the principles which had been enunciated in Stocks v Baldwin, Justice Beazley giving the principal judgment. Their Honours held that, where a driver travelling in the outside lane had passed a stationary line of vehicles before entering the intersection, that driver was negligent. The driver had been travelling at about 40km per hour and, after the lights changed to green, the driver accelerated and increased his speed up to 60km per hour. The driver passed the cars on his left and collided with a pedestrian who was crossing the road at the time when the lights changed from red to green.

8    That is a different case from the present. That was a case where there was a substantial line of traffic on the left which the driver passed and the driver had increased his speed very substantially from 40km per hour to 60km per hour. It was a case where the driver had time to observe and to react to the fact that the cars on his left were stationary.

9    However, each case must be taken on its own facts. In the present case, the trial Judge held that the respondent had not been travelling at an excessive speed and referred to the fact that the respondent was not cross-examined to the effect that he was travelling too fast in the circumstances. The trial Judge said that the intersection was well lit, that it was not an intersection in the heart of the city of Sydney in the middle of the day when a lot of pedestrians were about and that the respondent had been slowing down as he approached the intersection. I see no error in the approach taken by the trial Judge on this issue.

10    Counsel for the appellant submitted that there was a failure by the respondent to keep a careful lookout for the possibility of pedestrians. It is certainly a fact in the appellant's favour that the vehicles to the left of the respondent's car did not move prior to the accident occurring. They, of course, had arrived earlier at the intersection and they had to stop for the red light. The respondent's car was always moving. The trial Judge was influenced by the fact that, from the time the respondent had an opportunity to observe the appellant, there was insufficient time to avoid the accident. In the present case, unlike Clarke v Freund, there was no real opportunity for the respondent to take another course. Counsel for the appellant has submitted that the respondent should have paused momentarily to ensure that there was no person crossing the road against the traffic lights. However, the time involved was so brief that no finding should be made that the respondent failed to take a step that a reasonable driver, in the circumstances, would have taken.

11    The trial Judge considered that the accident was entirely due to the appellant's fault as he ran across the intersection against the lights and into the path of the respondent's vehicle, there being no opportunity for the respondent to avoid him.

12    In my opinion, the findings of the trial Judge were well based on the material before him. There is no cause for the intervention of an appellate court.

13    In my opinion, the appeal should be dismissed with costs.

14    BEAZLEY JA: I agree.

15    GILES JA: I also agree.

16    BEAZLEY JA: The judgment of the Court is that the appeal is dismissed with costs.

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