Le p22 I95Q = IN THE HIGH COURT OF AUSTRALIA REASONS FOR JUDGMENT Judgment debivered at Hn ba ow Pr, Meo, OM a PADMA I e.12280/45 § Es fs) bl Ve HOLDWAY WILLTAMS J uNZ (ORAL) JUD! LOBNSON ve HOLDWAY TUDGNENT (ORAL) This is an appeal by the defendant from a judgment of the Supreme Court of Queensland given by Townley J. in an action in which the plaintiff sued the defendant for injuries and loss by reason of a collision between himself and the defendant's motor vehicle on the 18th day of July, 1951. His Honour found that the collision was caused by the negligence of the defendant in not keeping @ proper lookout whilst driving the motor vehicle. He also found that the collision was not caused or contributed to by any negligence on the part of the plaintiff. His Honour awarded the plaintiff as specisl damages the sum of £236.10. 0 and as general damages the sum of £2,750. There is no appeal from the amount of damages awarded. The appeal is from the two findings I have mentioned. Mre Campbell submitted that on the evidence his Honour should not have found that there was any negligence on the part of the defendant. He also submitted thet on the evidence his Honour should have found that the collision was contributed to by the negligence of the plaintiff. Mr. Campbell, I think, has seid everything 'that can be said for the appellant on the appeal. But he has not satisfied me that we ought to reverse either of his Honour's findings. y L | { f ' His Honour dealt with the facts at considerable length. he plaintiff, who suffered serious injuries, had no recollection of the circumstences but Several witnesses saw the accident. It is not necessary, I think, for this Court to traverse the whole field again. It is only necessary to refer to a few of the more important Facts of the cases It appears the accident occurred at about ten to seven at night on the 18th July, 1951, where the New Lindum Road enters the Brisbane Road between Brisbane and Wynnume 'he plaintiff was a passenger on a bus which deposited him where the New Lindum Road enters Brisbane Road. He proceeded to cross the road after the bus had left from the out-bound side of Brisbane Road to the in-bound side in order to reach his home which is on the latter side. Apparently there is a small gate and also a double gate in front of that home. In the first place he went in a slightly diagonal direction towards his home. When he was about two or three feet from the centre of the bitumen he paused and then proceeded straight across the remainder of the bitumen towards the double gates. There is a light on the in-bound side of Brisbane Road slightly beyond the entrance of New Lindum Road into Brisbane Road and his Honour found that the accident occurred about fAfty or sixty feet from that light on the in-bound side of Bxrisbane Road. At about the time the plaintiff commenced to exoss the road the defendant was driving his motor car from Wynnum towards Brisbane with its headlights on. 'The bus, after dropping the plaintiff and some other passongers, pessed the defendant's car on its way to Wynnum so thet at one stage the.defendant's headlights and the headlights of the bus were approeching each other... The 'road from Wynnum to Brisbane descends before it reaches the lemp post to which I have referred, so that it may be that, because of the lights of the bus although they.were dimmed and the light from the lamp, , the defendant's vision was to some extent interfered with. Tie attempted to place the accident closer to the lamp post than the learned judge found. He admitted that he did not see the plaintiff until he was about eighteen inches away from the front of his car when, he said, the plaintiff suddenly appeared as an object leaping across the front of the car, The learned judge, however, found that the accident occurred further towards Brisbane at the spot to which I have already referred and it does not appear to me that at that spot the defendant could say that his vision was in any way interfered with by the lights of the bus or the light from the lamp. His Honour found that the defendant was not keeping a proper lookout. He said: "I accept his evidence that he did not see the plaintiff until he wes some eighteen inches from him but I do not accept his evidence that his failure to see was due to his being dazzled by the combination of lights. I think the street light would have little or no adverse effect on the driver of a vehicle approaching it and I think it more probable than not that, had the defendant been keeping a proper lookout, he would have been able both to see the plaintiff and to avoid him. I think he was not keeping a proper lookout. TI have not Lost sight of the fact that he was in a vehicle moving at approximately twelve yards per seconde" There is ample evidence to support these findings of his Honour and, in my opinion, the submission that his Honour was not justified in finding that the defendant was guilty of negligence should faile The second submission is that his Honour ought to have found that. the plaintiff wes guilty of contributory negligence. On this issue the onus is, of course, on the defendant, Dealing with this issue his Honour said: "On all the evidence it appears to me that when the plaintiff alighted from the bus which was stopped partly across the mouth of New Lindum Road - exactly to what extent I-cannot say - he walked to the rear of the bus, turned around the rear and there halted until the bus moved off approximately its own length. When the bus had so moved off he looked in the direction from which the defendant's car was approaching. He was then outside the offside alignment of the bus and in a position to see the car which had its headlights alight. I draw the inferences that he did see it end that he decided that he had time to cross the road without coming into collision with it. He then commenced to cross the road in a diagonal direction towards his house. © Whether he was walking ina direction calculated to bring him to his. small gate or to his double gate is difficult to determine and I think the witnesses who observed his movements could not really say exactly which gate he apparently proposed to enter. However, I find that he did walk, from where he had halted and looked tovards Wynnum, some six.to sight feet diagonally to a position approximately in the centre of the bituien portion of the roadway but slgithly nearer to the side of the road from which he started. At this position he again halted and again looked in the direction from which the defendant's car was.coming, Here again I draw the inferences that he say the car and determined that he could, by hurrying, reach the other side of the road in safety. He started off again, this time directly across the road. He started one at a rapid pace.» 'almost a run = and had reached a a position within approximately two feet, or one pace, of the far edge of the bitumen when he was. struck by the front left-hand side of the defendant's car, carried on by the car for a considerable distance and then thrown from the car to the roadway." It appears that. the bitumen of Old Brisbane Road is twenty feet in. width and that there is some gravel on each side of the bitumen so that. the road is slightly wider than that. Mr. Campbell contested his Honour's finding that the plaintiff saw the car, hut I think that finding was plainly open on the evidence and a reasonable inference from the way in which the plaintiff acted from the moment when he started to cross the road until the accident took place. The erucial question is, it seems to me, whether what the plaintiff did could be said to be negligence in all the circumstances of the case. The plaintiff was under a duty to take reasonable carefor his own safety and that duty included a duty when: be stepped off the footpath to exercise due care in crossing. the road to avoid oncoming treaftfice At the moment. he started to eross the road the only on-coming traffic was the defendant's car. 'There' was no out-bound traffie at the times Having seen the car, as his Honour found, it seems. to me that the proper.inference is that when he reached almost the middle of the road slightly on the. out-bound side he paused, as his Honour found, because he had seen the car and was in doubt as to what he ought to do. Mre Campbell's submission is that it was negligence on his part, having paused and having considered the matter in the brief, space of time ' t available for the purpose, seeing that the car was approaching, to attempt to cross the road in front of the car. He submitted that all he had to do was to remain where he was and he would have been perfectly safe. It may be that this suggestion is quite right. It would all depend on what the driver of the car did as he proceeded on his way after the plaintiff had paused. It would also appear that if he had decided to step pack to the footpath from which he had proceeded he would also have been safe. But the question is whether in deciding, as he apparently did, that he had time, if he hurried, to reach his destination in front of the approaching car he acted unreasonably in all the circumstances, His Honour said: "His fault, if any, lay in thinking he could cross in time. ljither he miscalculated the speed of the car, its distance from him or the speed it was necessary for him to adopt to reach the other side of the roads He had only about twelve feet or so to go to reach the far edge of the bitumen and he can hardly have miscalculated that distance. After he commenced this last portion of his journey across the road it seems to me his only sensible course was to keep on going. I am not persuaded that he was negligent in crossing the road in the menmner in which he did cross. In my opinion the evidence is more consistent with the plaintiff having committed a mere error of judgment rather than with his having embarked upon a dangerous enterprise without using his judgment at all. I think that, although the plaintiff committed an error of judgment, his conduct was reasonable in all the circumstances and was not negligent." I agree with his Honour that. in deciding to cross the road in front. of the defendant's car, which according to the defendant was travelling at 25 m.pehe, the plaintiff was acting reasonably and that what he did was, at most, an error of judgment and not such | dmprudence that it could be said to be unreasonable conduct on his part. In all the circumstances he was entitled, I think, to assume that the driver of the car could see him, as he should heve done, and would, if necessary, slacken speed. But quite independently of that, even if he thought the car would continue at the reasonably same pace, it cannot be said that he . could not have/decided he could safely pass in front of it or that what he did in all the circumstances was negligence. Accordingly, in my t opinion, his Honour was also justified in finding that there was no contributory negligence on the part of the defendant. It follows that the last finding of his Honour thet, if the plaintiff wes guilty of contributory negligence, the defendent had a last opportunity of avoiding the accident becomes irrelevant and I need say nothing on that subject. In my opinion the appeal should be dismissed with costse WEBB Jo I agrees TAYLOR J. I agrees