GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v BRUCE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY JJA and Hope AJA 27 February 1992, 27 February 1992 [1992] NSWCA 79 NEGLIGENCE — NO QUESTION OF PRINCIPLE NEGLIGENCE — running down case — pedestrian injured in pedestrian crossing after traffic lights had changed in favour of vehicular traffic — trial Judge's findings of negligence against driver and no negligence against pedestrian. On appeal held: Trial Judge's findings affirmed and appeal dismissed. No question of principle. ORDER Appeal dismissed with costs. Clarke JA I will ask Handley JA to give the first judgment. Handley JA This is an appeal from a judgment entered for the plaintiff in a running down case by Bruce AJ. The accident occurred in Pittwater Road, Warriewood on 14 October 1986 at about five o'clock. The plaintiff was crossing Pittwater Road from south to north in a marked pedestrian crossing when she collided with a car insured by the defendant and was injured. His Honour found that the insured driver had been guilty of negligence, that the plaintiff was not guilty of contributory negligence, and he assessed damages at $43,790. The defendant's appeal to this Court has been limited to issues of liability and challenged the findings of negligence against the driver and the absence of contributory negligence on the part of the pedestrian. The plaintiff had alighted from a bus on the southern side of Pittwater Road about thirty feet or so west of the T intersection with Jackson Street. She had crossed to the concrete median strip and then walked some fifteen feet south along the median strip to a pedestrian refuge at the intersection of Jackson Street. She says that when she reached the refuge the traffic lights were green, indicating "Walk" for pedestrians in the crossing and she began to cross from the median strip to the northern kerb. The south bound sector of Pittwater Road at that point carried four lanes including one for traffic waiting to make a right-hand turn into Jackson Street. When the plaintiff commenced to cross to the northern kerb there were vehicles stationary at the crossing. She had crossed safely to the third lane from the pedestrian refuge when she says the traffic began to move. The driver of the first vehicle in that lane, a Mrs Everson, who was called in the plaintiff's case, said that the traffic lights facing her had turned to green and she had either started to move forward or had gone to move forward when she noticed the plaintiff in front of her and stopped. The plaintiff hurried into the last lane adjacent to the northern kerb and collided there with the offside front mudguard of the vehicle driven by the defendant's insured at a point close to the driver's door. The rear vision mirror at this point was extensively damaged by the collision. 2 UNREPORTED JUDGMENTS There was evidence from the defendant's insured and from the driver of the car behind her that Mrs Everson's vehicle in the third lane was either a van or a large four-wheel drive vehicle which obstructed the view of both drivers to their right which was the direction from which the plaintiff was hurrying to complete her crossing. Of course, the same van would also have obstructed the plaintiff's view of vehicles waiting in the fourth lane for the lights to change. In these circumstances, the plaintiff suddenly appeared in front of the defendant's insured and likewise that vehicle in the fourth lane suddenly became visible to the plaintiff and at the last moment neither could avoid a collision. There was no proper evidence as to the timing of the changes in the traffic lights at this intersection. The Court does not know how long these lights facing pedestrians showed green, how long they flashed red and how long they showed red before the lights facing the traffic in Pittwater Road turned green. The appellant, in attractively presented submissions, challenged the trial Judge's findings accepting the plaintiff's evidence and in particular her evidence that the lights for pedestrians were showing green when she stepped off the pedestrian refuge on the median strip and commenced to cross the south bound carriageway of Pittwater Road. There was evidence both ways at the trial on this issue but it is clear that his Honour, who saw and heard the various witnesses, accepted the plaintiff's evidence that the lights were showing a green "Walk" when she commenced to leave the median strip and cross the southbound carriageway and that at that stage she was walking and not running. Submissions were made to us based on other evidence, particularly that vehicles were starting to slow down in the northbound carriageway of Pittwater Road as the plaintiff got off the bus and evidence from Sergeant Maruszak in which he gave an estimate of the time during which the lights facing pedestrians were flashing "Don't Walk" before they changed to red. In the light of this evidence it was submitted that the Court would reverse the judge's findings based on the plaintiff's evidence as to the state of the lights when she began to walk across from the median strip. In my opinion the challenge to these findings cannot succeed consistently with long-established principles which have repeatedly been emphasised by the High Court. Given the Judge's findings, in my opinion, it was inevitable that he should find that the defendant's insured was guilty of negligence. It is clear on her own evidence that she did not have any effective vision to her right, that being obstructed by the vehicle driven by Mrs Everson. She could not know whether some pedestrian was still trying to cross Pittwater Road when the lights for vehicles turned green. There could foreseeably have been some aged pedestrian still trying to complete the crossing. In these circumstances, in my opinion this Court cannot possibly interfere with the Judge's finding that the defendant's insured was guilty of negligence. The remaining issue is contributory negligence. The trial Judge accepted the plaintiff's evidence that she was walking quickly and not running. There was evidence before the trial Judge both ways on this issue. The defendant's insured and Mrs Lovelace, who was driving a car in the fourth lane immediately behind the defendant's insured, both said that the plaintiff was running. The plaintiff herself denied this and she had some support in that regard from Mrs Everson. The trial Judge accepted the plaintiff's evidence because he thought that the sudden appearance of the plaintiff from a point on the pedestrian crossing where \GROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v BRUCE (Hope AJAB she would have been out of sight from the defendant's insured and Mrs Lovelace, hurrying at that stage, could easily have given the impression to those ladies that she was running. Again, there was evidence both ways on this matter and it was essentially a matter for the trial Judge to decide this dispute of fact. He has done so in favour of the plaintiff and against the defendant who carried the onus and in my opinion this Court is not entitled to interfere with that finding. The only matter which has caused me some concern on the question of contributory negligence is whether the plaintiff should have paused after she had left lane 3 in safety before committing herself to the immediate crossing of lane 4. The trial Judge does not deal explicitly with this matter but it was clearly pleaded in the statement of defence and has been urged on us by Mr Marshall. In my opinion, there being no evidence as to the size of the vehicle in the third lane being driven by Mrs Everson, the position is that the defendant has failed to discharge the onus of proof. Had the defendant's insured been exercising appropriate restraint when the lights changed to ensure that there was no pedestrian still on the crossing, obscured from her view by Mrs Everson's vehicle in the third lane, the plaintiff could have successfully completed her crossing without injury. It was the fact that Mrs Foreman had commenced to move forward and had committed herself to a forward move of her car when she did not know that there was no pedestrian obscured from her sight, which created a situation of danger to any pedestrian emerging from the third lane immediately in front of her. In these circumstances, I am not satisfied that the plaintiff was guilty of contributory negligence bearing in mind the onus on the defendant and the paucity of evidence on the matters that I have earlier referred to. In my opinion, therefore, the appeal should be dismissed with costs. Clarke JA. I agree. Hope AJA I agree. Clarke JA. The orders of the Court will be as Handley JA has indicated. Appeal dismissed with costs. Counsel for the appellant: JH Marshall Solicitors for the appellant: Government Insurance Office Counsel for the respondent: CA Evatta/AL McSpeddan Solicitors for the respondent: O'Brien Connors and Kennett