GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v JOHNSTON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, CLARKE and MEAGHER JJA 19 February 1991, 19 February 1991 [1991] NSWCA 111 Appeal from District Court — Plaintiff injured in motor vehicle accident — Defendant held negligent in driving too fast — Held: no error in judge's finding — Plaintiff crossed road from behind stationary bus — Looked both ways — Held: no contributory negligence — No question of principle. Mahoney JA This is an appeal against judgment given by his Honour Davidson DCJon 2 May 1989. The judgment was for the plaintiff. The plaintiff was injured in a motor vehicle accident, she being then, the court is informed, some seventeen years of age. The accident took place in Nelson Street Annandale at about 4 pm. The light at that time was no doubt sufficient to make visibility reasonable. The circumstances of the accident are set out in the learned judge's judgment in the following terms: "The plaintiff gave evidence that on Thursday 19 September 1985 she was going home from school and at about 4pm alighted from a bus in Nelson Street. The bus, she said - and this appears to be common ground - was then double parked and she went to the rear of it. She said she looked both right and left and then right again before proceeding to cross the road. She knew nothing of the collision but regained consciousness in hospital. The matter comes before me with both liability and damages in issue. On the question of liability Mr Wyld gave evidence that he was travelling south in Nelson Street, that is to say, in the opposite direction to which the bus had been travelling. He said that he saw the bus before it stopped and after it had in fact stopped and that the plaintiff had come from behind the bus. To avoid a collision he had swerved and collided with a vehicle stationary on the opposite side of Nelson Street to the bus. Mr Wyld agreed that he had told the police at the scene of the collision on 19 September 1985 that he had been travelling at about 60 km/h immediately prior to the collision and that he had not reduced his speed when he saw the bus coming to a halt, although he was conscious of the fact that people - and in particular of course at this time in the afternoon, school children - might be emerging from the bus. It is fair to say, however, that his attention was not directed in evidence to the question of school children coming from the bus. Nevertheless, he quite openly conceded that the question of passengers alighting from the bus was within his consciousness as he approached it and that he did not reduce speed as a consequence of that realisation. He also said that he was not aware of any vehicle immediately ahead of him travelling south in Nelson Street, and which might have obscured his view of the plaintiff." The scene of the accident was generally as follows: The street, Nelson Street, was assumed to run in a north-south direction. There were four lanes of traffic, two going each way. There was no marked centre line. 2 UNREPORTED JUDGMENTS There appear to have been cars parked in the two lanes closest to the respective kerbs, so that for practical purposes traffic moving up and down the street would be confined to the two centre lanes. The plaintiff had been, as the learned judge said, a passenger on a bus which had stopped in a double parked situation, going from north to south. The plaintiff got out of the door of the bus which was closest to the back.. She described it, I think, as the door towards the centre of the bus. She went around the back of the bus and it was from there that she proposed to walk across the road to the other side of the street. The evidence was that the distance between the off-side of the bus and the centre of the road was something of the order of 18 to 24 inches. The plaintiff had walked approximately one to two metres across the road, that is to the other side of the imaginary centre line, when she was hit. The evidence was that there was, as it was described, a ditch or a dip in the road. That dip was south of the bus, that is in the direction from which the defendant's vehicle was coming. The only evidence that was given was that that dip was some 20 to 30 feet south of the plaintiff. It may be conjectured that it might have been some further distance south, but that I think was the only evidence in relation to the matter. The plaintiff said that she had looked to her right and then to her left and then to her right and then commenced to walk across the road and had got, as I have said, to a position about one to two metres across the centre line when she was struck. The learned judge, as his Honour found, accepted that Mr Wyld, the defendant:, was keeping a proper look out in relation to the matter but, as Mr Rewell has said, he found against Mr Wyld on the issue of negligence because of one factor, namely, that he found Mr Wyld had been driving through the area at an unchanged rate of some 60 km/h. The finding as to 60 km/h was not attacked and could not have been. It was this estimate of speed which was given to the police constable at or about the time of the accident and his Honour understandably accepted that in preference to a somewhat different account given by Mr Wyld at the trial. His Honour held that to drive through the scene at that time of the day at that speed constituted lack of care. Mr Wyld frankly confessed that he anticipated that there were people who were or might have been getting off the bus at the particular time. In the circumstances, reasonable care would involve that he would anticipate that there might be people who would come from the bus and attempt to cross the road from the back of it, as the plaintiff did. There were no marked foot crossings anywhere near the scene and therefore the fact that people might cross the road from the position of the bus in that way was, I think, something which ought to have been anticipated. Travelling at that speed meant that his opportunity to avoid a person who walked out in that way was very little, if there was any opportunity at all. It is, I think, not in contest and it could not have been that the speed contributed to the accident in that way. I do not think that the learned judge's finding in relation to negligence should be disturbed. Mr Rewell, correctly in his brief but properly directed argument, drew attention to the issue of contributory negligence. The submission was that the plaintiff was not taking appropriate care for her safety by crossing in the way that she did. She admitted in evidence that she did not see the vehicle at all. She was then faced, or her counsel was faced, with the problem of how this could have (OVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v JOHNSTON (Mahoneg JA) occurred if the vehicle was in such a position before she commenced to cross the imaginary centre line that it was able to strike her as it did. She said, and the learned judge accepted, that, as I have indicated, she looked to the right and then to the left and then to the right, but if she had looked to the left, the question is why she did not see the vehicle. The explanation that she gave was that there was a dip in the road which she described as being some 20 to 30 feet south from her position and that that must have obscured the vehicle from her side. The learned judge said this: "On the question of contributory negligence, the plaintiff gave evidence that the bus from which she alighted was some 20 to 30 feet south of a dip in Nelson Street over which it appears that a structure referred to as a viaduct has been erected. She suggested in evidence that this may have been the reason that, although she looked immediately before crossing the remainder of Nelson Street to the opposite footpath, she did not see Mr Wyld's car travelling south. I accept this evidence...". His Honour noted that this evidence, namely, that there was a dip in the road and that that dip in the road may well have obscured the sight of the vehicle from her, was not the subject of attack in any cogent way. I do not mean that the plaintiff was not questioned about the matter but his Honour noted that although an independent police officer gave evidence, it was not suggested to him, and no other evidence was adduced to suggest, that the dip in the road would not, as the plaintiff said, have been apt to obscure the vehicle from her sight if she had, as she said, looked to the left to see whether any traffic was coming before she crossed. It was on that basis, I think, that the learned judge approached the matter and on the evidence he was entitled so to do. His Honour accepted her evidence and on proper principles I do not think that this Court can or should go behind her evidence in that regard. The question then arises whether, in those circumstances, she had taken sufficient care for her own safety. Mr Rewell has put the matter in various ways. He submitted, firstly, that she could have spent more time in looking to her left before starting to cross. The suggestion was that she knew or should have known that vehicles could be obscured by such a dip, it being so close, and that in those circumstances, as I extrapolate his argument, she should have waited until she was sure that there was no car in the dip and that any car there had come out of it. The other submission was that on the evidence, after she had looked right, left and then right, she then looked straight ahead and no longer looked to the left. It was said that had she continued to look to the left she would have seen the vehicle and would have been able to step back and so avoid it. It was submitted that in these respects at least she had failed to take sufficient care for her own safety. The onus was upon the defendant to establish contributory negligence and his Honour was not satisfied that she had failed to take sufficient care in this regard. I do not think this Court should interfere with the learned judge's decision. In my opinion, his decision was right. In the circumstances, if the vehicle was approaching at the speed found, namely some 60 km/h, the time in question was very short. The fact that the plaintiff, having looked both ways as she said, then commenced to cross and had proceeded only a matter of two to three steps to a distance one to two metres over the imaginary centre line, shows that there was very little time involved. If this was so, the fact that during that very short time she had looked across to the other 4 UNREPORTED JUDGMENTS side of the road where she was going rather than again to the left does not, in my opinion, betoken contributory negligence. Mr Rewell, when asked, indicated that there was no evidence to suggest that the plaintiff knew of the dip in the road. If this was so, then the suggestion that she was negligent for her own safety in not waiting until any vehicle in it came out of it has little or reduced cogency. But even if she knew that there was a dip there, I do not think that the fact that, having done what she did, she then proceeded to cross in the way she did indicates that there was insufficient care for her own safety. Putting it no higher, I do not think that the defendant has discharged the burden of proof in this regard. As I have said, the matter was within a very short compass. In the circumstances, I would not disturb the learned judge's decision. I think it was in the relevant sense correct. In my opinion, therefore, the appeal should be dismissed with costs. Meagher JA I agree. Clarke JA I agree. The order of the court will therefore be as indicated by Judge 1 Counsel for the Appellant: KP REWELL Counsel for the Respondent: AJ BLACK Solicitors for the Appellant: MR GRANT WILSON Solicitors for the Respondent: GEOFFREY EDWARDS and CO