CABALA v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY JA and CLARKE JJA 25 May 1990, 7 June 1990 [1990] NSWCA 36 Appeal from Common Law Division — Action for negligence — Plaintiff pedestrian on pedestrian crossing at night — Walked from in front of stopped vehicle across path of oncoming vehicle — Lights showing green for traffic in direction defendant vehicle was going — Possibility of knowledge by driver that plaintiff was crossing on pedestrian crossing against pedestrian lights — Decision of fact as to care required by driver. Mahoney JA At approximately 9 o'clock in the evening of 10 July 1984 the plaintiff was struck by the defendant's motor vehicle. She was crossing Shaftesbury Road, Burwood, at its intersection with Victoria Street. She suffered substantial injuries. The plaintiff sued the driver and owner of the vehicle. On 30 November 1988 Yeldham J held that the driver had not been negligent and accordingly entered judgment for the defendant. The plaintiff has appealed to this Court against his Honour's judgment. At the trial, there was a serious contest between the plaintiff and the defendant as to the facts. The plaintiff's evidence was that she had crossed Shaftesbury Road from east to west in a pedestrian crossing and that the pedestrian control lights which were there were green and remained green in her favour until just before she was hit by the vehicle. His Honour did not accept the plaintiff's account of the accident and recorded that, at the trial, "her counsel did not submit that I should accept it". Before this Court Mr Toomey QC for the plaintiff accepted that the plaintiff's account was not to be relied upon and that, the matter was to be determined by reference to the evidence of the driver of the vehicle Mr Thomas Turner and the independent witness Mr Geoffrey Owen. He conceded that the statement made by Mr Turner at the time, which was recounted by the police officer in his evidence at the trial, and the evidence of Mr Owen are to be accepted as evidence of what occurred. The appeal has been conducted upon the basis that the Court is to determine whether, on that evidence, the driver was negligent and (if he was) the plaintiff was guilty of contributory negligence. Shortly after the accident the driver Mr Turner gave an account of what happened to the police officer. As the police officer said, Mr Turner told him: "T was travelling north in Shaftesbury Road. I was going about 40 kilometres per hour. The lights at Victoria Street were green for me to go through. I was originally in the lane closest to the centre of the road, but the car in front of me put his hlinker on to turn right into Victoria Street. I put my blinker on and changed into the kerbside lane to go around him. Next thing a pedestrian walks out from in front of his car into rny path. I was only about ten feet from her when she walked out. I jammed on my brakes, but skidded into her. The lights were still green for me." 2 UNREPORTED JUDGMENTS Mr Owen was an independent wltness. On the evening in question he was driving along Shaftesbury Road in a southerly direction towards the intersection of Victoria Street, that is, he was driving in the opposite direction to Mr Turner. His evidence in chief was: "Q. As you approached the intersection you noticed sone things happening. 'Tell us what you noticed? A. I noticed there was a car which was heading or pointing, I should say, north along Shaftesbury Road. It was stopped at the traffic lights which were red at that stage. It was waiting to make a right hand turn which was either going to be in front of me or behind me. HIS HONOUR: Q. It had its blinker on? A. Yes, I was about 30 rnetres from the intersection, I had slowed down probably to about 40, perhaps 50 kilometres per hour, and the lights turned green. Just before that a woman had stepped off the kerb of Shaftesbury Road. Q. That is on your left had side, is it? A. From the left hand side, crossing to the right hand side. When she stepped off the lights for traffic in Shafteshury Road were red, but about two paces up, she had taken two paces up the road and they turned green in Shaftesbury Road. Q. That would mean the the red light "Don't Walk" would have been flashing when she stepped off? A. I should imagine so, yes. She continued to walk acro, ss the road in front of the vehicle that was waiting to turn right. As she passed that vehicle I saw another car passing on the left hand side of that vehicle turning right, going past him to proceed further north along Shaftesbury Road. The woman took about two paces beyond the stopped car and was hit by the vehicle that was passing. She was carried across the intersection on the bonnet of the car. I stopped my car nearly alongside her and tried to assist her as I could. COHEN: Q. At what pace was she going? A. Just a standard walking pace, not particularly fast or slow. Q. Could you see her clearly at the time you were about 50 metres away." A. I could, yes. Q. The other car that came up on the inside that struck her - had it been stationary or had it been moving along the road before it moved into the inside lane? A. It had been moving. Q. Is it fair to say that it had been travelling along - (Objected to). Q. In which lane had you first seen this vehicle that eventually struck the plaintiff? A. I didn't notice that vehicle, I couldn't recall seelng it until it was in the kerbside lane because I saw it appear from behind that stationary vehicle. Q. Was it accelerating or are you able to say at what speed it was going and whether or not it was accelerating? A. I couldn't say because, well, it was night and all I could see was the lights. All I could say is that it wasn't going particularly fast, it was an average speed for that sort of road. Q. Could you see whether there was a pedestrian crossing where the vehicle was stopped to turn right'? A. I couldn't see it, but I knew it was there. HIS HONOUR: Q. There was a pedestrian crossing, you say? A. Well, controlled by lights, not a zebra crossing or whatever you call it. COHEN: Q. Do you remember what the lighting was like in the area? A. It was quite well lit. It is just behind Burwood Westfield shopping centrer so it is probably well lit because of that. Q. There is a big car park that is lit up at night so people won't steal the cars. Is that right? A. Well, there is a car park, but apart from that there is pedestrian traffic and other traffic, so it probably is well lit. WRBALA v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Mahone? JA) Q. I think you have already answered this, but at the time you saw the plaintiff step off the kerb were you able to see where the defendant's vehicle was? A. No. Q. You spoke to the driver of the defendant's vehicle, Mr Turner? A. Yes. Q. Do you remember anything he said? A. I can't remember word for word, but it was to the effect that 'I couldn't help it' or 'I couldn't miss her' or something of that order, or that is what he meant anyway but I can 'remember the exact words. " Mr Owen in cross-examination agreed that what he had told the police officer on the evening of the accident differed somewhat from what he had said in his evidence in chief. He had said then that he was about 100 feet from Victoria Street when the lights turned green that he noticed the plaintiff walk off the eastern kerb of Shaftesbury Road across the pedestrian crossing and that the green light was showing in his favour "well before she walked off the kerb". However when asked about his statement he said: "T agree that is what I said to him. I al(sic) remember going over it the next day and thinking she was a couple of paces off before the lights turned green. " He adhered to the fact that "she took a couple of steps off the kerb before the lights turned green". He agreed that he had said and his recollection was that "she walked in front of him" (the driver of the defendant's vehicle) "and he collected her'. He said that the plaintif f "was rugged up in a dark coloured overcoat" "her head hunched over" and "her hands in the pocket of her overcoat". He said that it appeared that she wasn ' t looking at the traffic, that she didn't "noticeably look around to see if it was safe from the time I saw her". His evidence concluded: "Q. Would it be fair to say that she just stepped straight in front of that part of the car from in front of the other vehicle that was about to turn right? A. Yes. Q. Just before the vehicle hit her did you see its lights dip? A. I did. Q. Which i, ndicated to you that he was braking? A. Yes." Mr Toomey QC for the plaintiff submitted that the issue to be determined was whether the driver had struck the plaintiff because he had failed to keep a proper look out. It was not suggested that he was driving too fast or otherwise in a negligent rnanner. Without attempting to state exhaustively the ways in which the matter was put, Mr Toomey's argument for the plaintiff involved I think, essentially two things: that if the driver had been keeping a proper look out, he would, as he approached the intersection from some distance back, have seen that the plaintiff was crossing in the pedestrian crossing; and that, having seen that, he should have slowed down so that he would be able to avoid the plaintiffif, in disregard of her own safety, she simply continued to cross the crossing in front of the stopped motor vehicle. The argument suggested that the plaintiff was in full view of the defendant driver from about the time she stepped off the south-eastern kerb of the intersection. There were no obstructions on the road and the intersection was, having regard to the time of night, well lit. There was no evidence that there were other vehicles which would have interfered with the driver's view as he came towards the intersection behind the vehicle that eventually was to turn right. It was suggested that the plaintiff, walking at an ordinary walking pace, would have taken some five or six seconds to move f rom the kerb to where she was hit and that during that time a driver proceedi ng north in Shaf tesbury Road and looking to the crossing on the other side of Shaftesbury Road where the plaintiff was would have been able to see her. 4 UNREPORTED JUDGMENTS It was then put, or inferred, that if the driver did not see the plaintiff when he should have, he could not, for the purpose of assessing what reasonably he should have done, be in a better position that if he had seen her. In general terms, and in the context of this case, it is proper to approach the issue of negligence on that basis. Finally, it was put that, knowing that the plaintiff was walking across the pedestrian crossing, the driver was required to take precautions against her continuing in that course. And, the inference was, prudent care required that the driver drive sufficiently slowly so that, if the plaintiff did continue out from the stopped vehicle, the driver would be able to avoid her. It was not suhmitted that, at a pedestrian crossing controlled as this crossing was by pedestrian lights, it was the duty of the driver so to approach it that, whatever happened, he would be able to stop so as to avoid a pedestrian who was on the crossing: cf London Passenger Transport Board v Upson (1949) AC 155. Had such a submission been made at the trial it might no doubt have been necessary to consider the existing regulations and the facts necessary to bring them into operation. But the matter was dealt with, before the judge and before this Court, upon the basis of the general law of negligence. The question which Mr Toorney's submissions therefore posed was whether, if he knew or ought to have known the plaintiff was on the crossing as she wast the driver should have taken more precautions against hitting her than he did. The defendant did not, I think, contest that, in the formal sense, the driver had a duty of care to the plaintiff. In any event, in my opinion, he had such a duty. As [have sald, the issue in this case is whether he did what that duty required him to do and whether the plaintiff's injuries resulted from any failure in that regard by him. The defendant pointed to the fact that the traffic lights were green in favour of the driver, that the plaintiff was so dressed in dark clothing as to render the perception of her more difficult than it might have been, and that at the particular time, she was obscured by the parked vehicle. And Mr Guihot for the defendant submitted, in assessing the content of the obligation of the driver to take care, it was relevant to take into account that, as was not contested, she must have started to cross the intersection at a time when, at the least, the pedestrian signs indicated to her that she should not cross. And, he submitted, it was to be expected that, if she had commenced to cross as she had, a driver would anticipate that she would not cross in front of his oncoming vehicle but pause in the centre of the road until that part of Shaftesbury Road was clear. The content of a duty of care in negligence must, of course, depend upon the circumstances of the particular case. In Wyong Shire Council v Shirt 146 CLR 40 at 47, Mason J said: "In deciding whether there was been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response call, s for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact \WRBALA v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Mahoney JA) can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors." In considering, in general, what a driver should do, it is relevant to recall that, if damage does result in a particular case to a pedestrian, the damage to the pedestrian may be very serious and may be out of proportion to the inconvenience or damage apt to be suf f ered by the driver if a precaution is not taken. This is one of the matters to be borne in mind in this case. However, in the end, what a driver must do in particular circumstances must be determined having regard, inter alia, to the fact that, in the practicalities of modern living, traf f ic proceeds along public roads, that its passage is in the relevant sense conditioned by traffic lights, and that the access to such roads at intersections and the like is correspondingly controlled by pedestrian signals. The precautions which are to be expected of a driver are what a reasonable rnan would do in the practicalities of such a traEfic situation. It was apparently once thought that the possibility of injury required vehicles to be preceded by a man with a red f lag. Such a precaution would eliminate the possibility of injury even to those who came out from between parked vehicles or the like. But it is now recognized that the risk that a vehicle may strike a person who does that does not require that vehi cles proceed at such a pace. In the present case, the plaintiff's argument on this aspect involved that the driver should have driven at such a speed and manner that, if the plaintiff had indeed "walked out from in front of' the parked car "into" the car of the defendant driver, he would have been able to avoid her. Giving full consideration to the circumstances, in the end I am not satisfied that he should. I am not satisfied that, in this case, the the driver failed to do what a reasonahle man in his circumstances would do. I am conscious that the driver would, for example, have had a view over the bonnet of the stopped vehicle. That would have been for a short time. The driver did in fact see her and at such a time that, taking into account minimum reaction time and braking time, he was able to brake so that he "skidded into" the plaintiff. And I have in mind that it was accepted for the plaintiff that, in this regard, the speed at which the car was going beforehand, 40 kilometres per hour, was not relevantly excessive. I have in mind also that the driver was not available to give evidence. The defendant indicated the steps taken to attempt to secure his attendance at the court. No doubt more could have been done: I do not think that the fact the defendant did only what it did affects the present question. The fact is that the Court does not have the benefit of what the driver might have said, in chief or in cross-examination, beyond what was said to the police officer at the time. Where a witness is not available, because of death, inability to attend or otherwise, the Court must deal with the evidence as it is. In all the circumstances, I am not satisfied that, in what he did or omitted, the driver fell below what the circumstances on that evening required of him. In my opinion the accident was, in a practical sense, caused by the action of the plaintiff 6 UNREPORTED JUDGMENTS in stepping into the path of the vehicle at a time when the driver of it did not have the opportunity to do more than he did. I do not think that, in the particular circumstances of this case, even if the driver had seen the plaintiff leave the footpath, the possibility of her walking in front of him as she did required him to do otherwise than he did. I do not mean by this that drivers may ignore persons known to be on a pedestrian crossing. What a driver must do depends on the facts of the instant case. Given the facts of this case, in my opinion the appeal should be dismissed with costs. Priestley JA I agree with Mahoney JA. Clarke JA I agree with Mahoney JA. Appeal dismissed with costs. Counsel for the Appellant: BMJ Toomey QC/Cahill Solicitors for the Appellant: Bolzan and Princi Counsel for the Respondent: JP Guihot Solicitors for the Respondent: Mr Grant Wilson