LISICA vy GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, SHELLER and Cripps JJA 6 July 1993, 6 July 1993 [1993] NSWCA 163 NEGLIGENCE — motor vehicles — pedestrian crosses busy highway against pedestrian light — beckoned in front of two stationary vehicles — hit by vehicle in kerbside lane proceeding in clear turning lane — whether vehicle travelling too fast — whether driver failed to keep proper lookout — pedestrian runs across road — held: (affirming decision of Glissan A DCJ dismissing pedestrian's claim): No error shown — no negligence which caused the pedestrian's injury. Appeal dismissed. Cheetham and Anor v Bou (1989) 10 MVR 242 (CA) Caldwell v Deka, Court of Appeal (NSW) unreported 11 June 1993 Kirby P I shall ask Cripps JA to give the first judgment. Cripps JA This is an appeal from a decision of Associate Judge Glissan published on 27 July 1990 dismissing the appellant's claim for damages for personal injury arising out of an accident on the Pacific Highway at Crows Nest. The circumstances giving rise to the claim were that on 5 June 1985 the appellant was struck by the respondent's car at a time when he was attempting to cross the Pacific Highway at Crows Nest at the intersection of the Pacific Highway and Hume Street. At that point the Pacific Highway travels north/south. The appellant was originally on the western side of the highway and, in order to arrive at his destination, he was required to cross three northbound lanes and three southbound lanes. The accident occurred at about 8.30 in the morning during peak hour traffic. Immediately before the accident the appellant had crossed the three northbound lanes of the Pacific Highway. He was on the median strip. The lights were green for traffic travelling north and south on the Pacific Highway and red for traffic travelling east/west in Hume Street and red for the plaintiff/appellant. The facts are mostly not in dispute. The appellant was apparently waved across the intersection by two cars that were in the lanes nearest the median section travelling south. It was peak hour and, although the lights were green, the traffic was not moving in those two lanes. However, traffic was moving in the kerbside lane, that is the easternmost southbound lane of the Pacific Highway. That lane, at the next intersection, carried traffic to Neutral Bay and Mosman. After receiving the signal from the two stationary vehicles, the appellant ran in front of them and struck the respondent's vehicle, as a result of which he suffered the injuries he complained of. His case at trial was that the driver, that is the respondent, of the vehicle in the kerbside lane was travelling too fast in the circumstances and had failed to keep a proper lookout. His claim was rejected by Judge Glissan and I am of the opinion that it has not been demonstrated that his rejection was wrong. The appellant gave the following evidence at the trial (at 24 of the transcript): "Q. And you were hurrying across the road because it was a busy road, weren't you? 2 UNREPORTED JUDGMENTS A. Yes, I was in a hurry in a way but I have to stand and wait for a while because the traffic was very heavy. Q. When the ladies indicated for you to go you ran across in front to get out of their way quickly, didn't you? A. Yes. Q. So when you were hit you were in fact running? A. Yes. Q. You didn't see the car that hit you until almost the same time, is that right? A. Yes." The respondent's version of the accident was that he was travelling at 55 kilometres per hour in the southbound lane; he did not see the appellant standing on the median strip at the intersection and the first time he saw the appellant was when the appellant ran into his car. One would infer he saw the appellant immediately before the impact, that is about the same time as the appellant saw him. In these circumstances, in my opinion, it has not been established that he was travelling at a speed which was excessive in the circumstances nor that he was failing to keep a proper lookout. He was asked in cross examination (at 35 of the transcript): "Q. And at that particular time you were looking straight ahead? A. That's right. Q. And as you approached the intersection you saw nothing unusual as you were looking straight ahead, is that correct? A. Exactly, yeah. Q. And the first time you noticed this person that you hit was almost as he hit, is that correct? A. Yes." In my opinion, it has not been established that he failed to keep a proper lookout in failing to see the appellant on the median strip. But there is, I think, a more compelling reason for rejecting the appellant's claim in these proceedings and it is this: that even had he seen the appellant in the position he said he was in immediately before he left the median strip, the accident would still have happened. The appellant gave evidence that he ran in front of two cars. It has not been established that, even if the respondent had failed to keep a proper lookout, that failure - that is not seeing the appellant on the median strip - had any causal nexus with the accident that later occurred. We have been referred to a decision of this Court in Caldwell v Deka (16 June 1993, unreported) in which the Court found negligence in circumstances that have some similarities with the present case and apportioned liability as to twenty per cent for negligence and eighty per cent for contributory negligence when, as has been pointed out by Mr Shore, the circumstances in that case are significantly different in material respects to the circumstances in the present case. In short, my conclusion is that it has not been established that the respondent failed to keep a proper lookout. On the evidence before the court below, both parties saw each other at the same time. It was open to the judge to conclude that it was not established that the respondent could have seen the appellant had he concentrated his gaze in that direction but, as I have also said, I am of the opinion the appeal should be dismissed because no causal nexus was established between the failure to see the pedestrian/appellant and the accident that subsequently occurred. For these reasons, I would dismiss the appeal with costs. Kirby P: I agree. UBISICA v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Cripps JA) 3 Counsel for the appellant skilfully presented the case, putting forward everything that could be put in favour of the appellant. He emphasised the high responsibility which is assigned by our law to drivers of motor vehicles proceeding on public streets. He pointed out that the accident involving the appellant occurred in broad daylight. It happened in a shopping centre at a time when, by inference, there would be many pedestrians about. He called attention to two recent decisions of this Court in which the Court has emphasised that motorists must be on their guard, exercising due care for the intrusion of pedestrians into the motor carriageway. In Cheetham and Anor v Bou (1989) 10 MVR 242 Mahoney J, at 246, said: "I agree it is proper for a judge to take what is in effect judicial notice of the fact that in the central business district of Sydney where this accident happened, pedestrians do at times tend to cross streets not strictly in accordance with requirements of the Motor Traffic Regulations and that drivers do tend from time to time to act otherwise than they should. The standard of care, what in effect the duty of care requires, is to be assessed by reference to these matters." In Caldwell v Deka unreported, Court of Appeal, 16 June 1993 without knowledge of the Cheetham decision I said something similar. I emphasised that it is the common experience of judges if (as I rather unkindly said) they leave their cloisters to see (as any other citizen will) that pedestrians cross the carriageway. They may do so to take advantage of a break in traffic and to move from one side of the road to the other. This is what the appellant did in the present case. The law of negligence takes account of these realities and the duties which they impose on careful drivers. However, with Cripps JA, I am of the view that this case is not on all fours with Cheetham or with Caldwell. So far as Caldwell is concerned, the points of distinction are that this incident occurred at a controlled intersection where the pedestrian had the immediate advantage of pedestrian signals. In the case of Caldwell the accident occurred some way back from the controlled intersection and to that extent the factual situation is different. Secondly, in Caldwell the trial judge had found that the pedestrian had walked briskly, not run, whereas in the present case the appellant himself admitted that he had run from the median strip where he was stationary and had then run again across the front of two motor vehicles which were effectively stationary because of the traffic. Thirdly, in Caldwell the case for the appellant was that the respondent motorist was trying to "run the lights". He had the advantage of lights which had been red but had just turned green. He was aiming to get to the other side of an intersection for a fast food outlet. In this case the lights were always green in favour of the respondent's insured. There was no suggestion that the vehicle was running the lights. The driver was simply proceeding along in a normal way. As Cripps JA has pointed out, even if the driver had been keeping the most acute, vigilant and careful lookout to avoid collision with a person who ran from the centre median strip into the path of his vehicle, it would have been virtually impossible for him to have stopped in time to avoid collision. For these reasons I do not believe that the earlier decisions of the Court require that the appeal be allowed. On the contrary, although it is sometimes useful to look at earlier cases in order to dispel the myth that a pedestrian who is struck emerging from between stationary vehicles has no claim, it is important to emphasise, as the Court always does, that each case must be determined on its own facts. Out of the facts arise either the inference of negligence or the conclusion that negligence is not established. In this case I believe that the trial 4 UNREPORTED JUDGMENTS judge was right. No error sufficient to authorise this Court to reach a different conclusion has been demonstrated. The driver was not shown to have been negligent. Certainly it has not been shown that any negligence on his part caused the appellant's injuries and losses. I therefore agree that the appeal must be dismissed with costs. Sheller JA For the reasons given by the other members of the Court, I agree that the appeal should be dismissed with costs. Kirby P The order of the Court is that the appeal is dismissed. The appellantmust pay the respondent's costs. Appeal dismissed with costs. Counsel for the Appellant: WJ Carney Instructed by: Flannery Mura and Costello Counsel for the Respondent: H Shore Instructed by: GM Meadows, Solicitor for GIO