LJUBOMIR ILSEVIC vy GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, SHELLER and CRIPPS JJA. 13 November 1992, 13 November 1992 [1992] NSWCA 111 NEGLIGENCE, REASONABLE CARE. Meagher JA In this matter the plaintiff, Mr Ilsevic, appeals to this Court froma judgment in favour of the defendant given by his Honour, Judge Walsh, in the District Court. The incident out of which the plaintiffs case grows was a collision at Terminus Street, Liverpool, between the then plaintiff, who was a pedestrian, and Mr Tierney, the driver for whose conduct the defendant was responsible. The accident took place about 6 pm on 12 November 1986. It was virtually common ground that the plaintiff was endeavouring to cross Terminus Street from north to south in order to reach the junction of Terminus Street and Speed Street. He in fact reached the median strip, then stepped off and was struck by the defendant's vehicle which was travelling west along Terminus Street in the lane closest to the median strip. As I have said, so much here is common ground but as to the details of the accident there was considerable dispute. His Honour accepted that the defendant's speed was not excessive. The traffic was very heavy and the conditions were wet. His Honour must be taken to have accepted completely the defendant's evidence, unless he indicated to the contrary, and that conclusion was that when the defendant first saw the plaintiff leaving Terminus Street from the northern side, he was about sixty metres away. At this stage the speed of his vehicle was approximately 45 km per hour. When he was twenty five metres away, the plaintiff had reached the median strip of the road. At this stage the defendant reduced his speed to approximately 20 or 30 km per hour. As far as the defendant's mind is concerned, that is set out in a series of questions and answers, as I shall now read. They come from the defendant's evidence-in-chief: "Q. What happened when you got to the centre of the road? A. He appeared to stop for a second, you know, because he - I was just about there when he was about in the middle of the road there. I thought he was going to stop and wait. Q. Where did you think he was going to stop? A. On the median strip. Q. Did he in fact stop? A. For a brief second, yes. Traffic everywhere. I thought he was going to stay there." The only conclusion one can draw from such evidence is that at the twenty five metres point, when the defendant saw the plaintiff reach the median strip, he was under the impression that the plaintiff was going to stay there in the normal course until the road became clear. In fact the Plaintiff did not do that. He stayed on the median strip for a short period of time variously estimated at different 2 UNREPORTED JUDGMENTS times, but between one second and five seconds - then moved out into the oncoming traffic. This was described by counsel for the defendant in the appeal as irrational conduct and, in my view, that is not an inadequate description. The defendant used all reasonable care - I stress the word "reasonable" - and would not have any possible reason to imagine that the plaintiff would step into the oncoming stream of traffic. There was no reason for the defendant to imagine that the plaintiff was in any way disabled, drunk or unable to appreciate that traffic was coming. It cannot be the law that the defendant was obliged to stop until the plaintiff had crossed the road when he had no reason to think that the plaintiff was doing anything except waiting on the median strip until the coast was clear. Counsel for the appellant, Mr Graves, in an argument which was very convincingly put, suggested to us that this analysis is incorrect and fastened on a question and answer in the defendant's evidence, to the following: "Q. Did he look in your direction? A. I wasn't - not that I was aware of, no." That of course is not to say that the defendant knew that the plaintiff had not looked in his direction but merely that he was not aware that the plaintiff had or not. In any event, even if the defendant had positively known that the plaintiff had not looked in his direction, that awareness could not have reached him until some seconds after the plaintiff actually reached the median strip. For these reasons, in my view, the appeal should be dismissed with costs. Sheller JA I agree. The central point in issue, as emerged in argument, was whether or not the driver of the motor vehicle acted reasonably at the point when he was about twenty five metres distant from the plaintiff on the median strip. The driver's evidence was that he thought the plaintiff had stopped and was waiting. There is no doubt, on the evidence as accepted by the trial judge, that the plaintiff had indeed stopped. It seems to me entirely reasonable in the circumstances of this case for the driver, having observed that, to have come to the conclusion that the plaintiff was waiting for him to pass and to proceed accordingly. The plaintiff had crossed from the northern kerb of Terminus Street to the median strip. He had crossed, as far as the evidence shows, at a right angle. The traffic was heavy. There was no reason for the driver to suppose, the plaintiff having stopped at the median strip, that the plaintiff was not aware of his presence. I agree that negligence has not been made out and that the appeal should be dismissed with costs. Cripps JA I agree with the order proposed by Meagher JA and for the reasons given by Meagher JA and Sheller JA. The appeal is dismissed with costs. Counsel for the appellant: JJ Groves Solicitors for the appellant: Markham Geikie and Rumore Counsel for the respondent: RC Lauer Solicitors for the respondent: Government Insurance Office