GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v AYTEN ERGUL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY AP, CLARKE and MEAGHER JJA 2 December 1993, 17 December 1993 [1993] NSWCA 108 APPEAL FROM DISTRICT COURT — Motor vehicle accident — Plaintiff crossing street at pedestrian crossing against lights — struck by motor cycle one metre from far kerb — Held: Cyclist guilty of negligence. PEDESTRIAN CROSSINGS — Duty of drivers approaching pedestrian on pedestrian crossing — Whether duty affected by fact that pedestrian is crossing against lights. CONTRIBUTORY NEGLIGENCE — Held (Mahoney AP and Meagher JA, Clarke JA dissenting): Pedestrian 25 per cent responsible for damages. Mahoney AP At about 5.30 pm on 7 June 1985 the plaintiff Ayten Ergul was crossing Beamish Street, Campsie. He was struck by a vehicle and suffered substantial injuries. He claimed damages from what was then the relevant authority, the Government Insurance Office of New South Wales ("GIO"). On 21 December 1990 Twigg DCJ, as he now is, held that the plaintiff was injured by the negligence of the driver of a motor vehicle, held that responsibility for his injuries should be apportioned as to one-third to the plaintiff, assessed his damages at $35,295.80, and awarded the plaintiff judgment in the amount of $23,530. GIO has appealed to this Court against his Honour's judgment. On appeal it was contended for GIO: (1) That the driver of the motor vehicle was not negligent; (2) That (if he was) the responsibility for the plaintiffs injuries shouldbe apportioned equally between the plaintiff and the driver; and (3) That his Honour's assessment of the damages was appealably excessive. In order to deal with the submissions made by the parties it is necessary to refer to the facts as they were found by the learned judge. Counsel for the respondent has accepted that the statement of them by counsel for GIO may be accepted as relevantly correct. The plaintiff was on his way home from work. He came from the Campsie Railway Station and proceeded to cross Beamish Street adjacent to the railway station. Beamish Street is a "main" street and at the point where the plaintiff crossed, there was a marked pedestrian crossing controlled by pedestrian lights. The street was some four traffic lanes wide and was straight in both directions for a considerable distance on either side. The weather was fine and it was dusk. The plaintiff was able to see 100 metres and more in either direction. There were a number of people on the footpath waiting to cross the pedestrian crossing. At the time, pedestrian lights showed "Don't Walk". Notwithstanding this, the plaintiff walked across the street. Before stepping off the kerb he looked to his right side and saw traffic stopped at another set of traffic lights some distance away. He looked to his left, the relevant direction, and saw on the road 2 UNREPORTED JUDGMENTS only a big truck in the median lane about 100 metres away. Other persons had commenced to walk across and he commenced to do so. He believed "that I could cross easily". When he had "already passed half way through the road" he looked again to his left. He again saw the truck in the middle lane. It was suggested to him that, when he again looked to his left, the truck had advanced only about 40 metres and was some 50 or 60 metres from the pedestrian crossing. He was asked whether it was approaching "quickly or slowly" and he said: "It wasn't very, very quick truck (sic) because it seems as though it was loaded sir, it was loaded". He then continued to cross the road and he was "about a metre from the kerb" when he was "struck by a motor cycle". The plaintiff, in his statement to the police officer who attended the scene of the accident, said: "T got off a train at the railway station, walked up the stairs to Beamish Street and stopped at the pedestrian crossing with the intention of crossing the road. After about three minutes I noticed that the traffic coming along Beamish Street from my right had stopped up near Anglo Road and there was a truck coming from my left along Beamish Street in the lane near the middle of the road but it was still a fair way back and I knew I could cross the road before it reached-the crossing. I stepped from the kerb and started to cross the road with two or three other pedestrians. As I entered the lane nearest the kerb on the other side I was hit by a motor cycle which was travelling in that lane but which I hadn't seen because it was obscured by the truck." It was accepted that the plaintiff had not seen the motor vehicle which had struck him and that he had inferred that it was a motor cycle because the point on the road where he was struck was so close to the kerb that it was improbable that a motor vehicle would have been that close. The learned judge inferred that he was struck by a motor cycle. GIO, for the purposes of the appeal, accepted that it "matters not which". The judge held that the driver of an approaching vehicle should keep a proper lookout, drive at a speed which was not excessive and watch for persons on the pedestrian crossing. The driver would, his Honour inferred, have had an unobscured view of the crossing and the persons on it. The argument has proceeded upon the basis that the plaintiff was struck by a motor cycle. I shall assume that to be so as the assumption is one favourable to the appellant GIO. (1) NEGLIGENCE: In my opinion, Twigg DCJ was correct in finding that the motor cyclist was guilty of negligence. The traffic lights at the crossing were, it is accepted, in favour of the motor cyclist. But the cyclist had, subject to what I shall say, a clear and unobstructed view of persons on the crossing. It was not suggested that this was not so. The only qualification suggested was that, as the truck which the plaintiff saw was in the centre lane, it would or may have obstructed the cyclist's view of the crossing as he approached it. There was no evidence as to how fast the truck was approaching the crossing, where it was that the cyclist was in relation to or, possibly, passed the truck, or by how much, if at all, the cyclist's view was obstructed. But, as the plaintiff reached ta within about a metre of the kerb of Beamish Street, he would have been in view of the cyclist for at least part of the time during which the cyclist approached the crossing. The plaintiff was \WROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v AYTEN ERGU& (Mahoney AP) moving at a walking pace and had not quickened his pace. I would infer that, for some time as the cyclist approached the crossing, the plaintiff would have been in clear view. The cyclist had a duty to take precautions in respect of persons who might be crossing the road: that was, I think, not in contest. The dispute was as to the content of that duty and what it required the motor cyclist to do or not to do. In argument two matters were discussed: the effect upon the content of the duty of care of the fact that the plaintiff was in a pedestrian crossing; and the effect in that regard of the fact that he was crossing against pedestrian lights. In my opinion, the fact that the plaintiff was in a pedestrian crossing required of the motor cyclist a greater degree of care than had the plaintiff been crossing merely upon an unmarked part of the road; and the effect of the marked pedestrian crossing in that regard was not entirely removed by his having crossed against the pedestrian lights. In my opinion, it is the purpose of a pedestrian crossing and of the statutory provisions in relation to it to impose a higher degree of care upon a motorist in relation to persons upon the crossing. At the relevant time, Reg67(2) of the Motor Traffic Regulations 1935 provided: "67.(2)(a) The driver of a motor vehicle approaching a marked footcrossing or children's footcrossing shall proceed at such a speed as to be able, if necessary, to stop before reaching such footcrossing. (b) Where a motor vehicle is approaching or is travelling upon a marked footcrossing and a pedestrian is walking upon or a toy vehicle is being ridden across such foot crossing, so that if both continued they would arrive at the same point together and collide, the driver of the motor vehicle shall lessen the speed of or stop the vehicle and allow such pedestrian or toy vehicle to pass in front thereof." Reg6A of the General Traffic (Pedestrian) Regulations 1937 provides: "6A.(1) Where at a marked footcrossing there is an illuminated sign which displays at successive intervals: (a) the word "Walk" and the words "Don't Walk";... no person shall commence to cross the carriageway towards the sign whilst it is displaying in his direction the words "Don't Walk"..." In my opinion, the provisions as to pedestrian lights in the regulations do not exempt the driver of a motor vehicle from compliance with the requirements of regulations such as Reg67(2). It remains the duty of a driver approaching a marked footcrossing to approach at such a speed as to be able if necessary to stop to avoid a pedestrian who is upon the crossing and it remains his duty to give way to the pedestrian to enable the pedestrian to have the right of way referred to in Reg67(2)(b). There are, of course, qualifications to the generality of such a statement of the position. Thus, it is not necessary to consider when regulations of this kind may provide, in New South Wales, a separate cause of action or whether they are to be understood as evidencing merely the standard or kind of care or precautions which the observance of a general duty of care requires. This matter has been considered in other contexts and it is not necessary for present purposes to pursue it: see generally Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438; Sibley v Kais (1968) 118 CLR 424. 4 UNREPORTED JUDGMENTS But there are, in addition, qualifications to the generality of the requirements of provisions such as Reg67(2). The operation of such regulations was considered by the House of Lords in London Passenger Transport Board v Upson (1949) AC 155. In view of the submissions made in the present case, it is relevant to refer to what was there said. The regulations considered in Upson's case were in the following terms: "3. The driver of every vehicle approaching a crossing shall, unless he can see that there is no foot passenger thereon, proceed at such a speed as to be able if necessary to stop before reaching such crossing. 4. The driver of every vehicle at or approaching a crossing where traffic is not for the time being controlled by a police constable or by light signals shall allow free and uninterrupted passage to any foot passenger who is on the carriageway at such crossing, and every such foot passenger shall have precedence over all vehicular traffic at such crossing. 5. The driver of every vehicle at or approaching a crossing at a street intersection where traffic is for the time being controlled by a police constable or by light signals shall allow free and uninterrupted passage to every foot passenger who has started to go over the crossing before the driver receives a signal that he may proceed over the crossing." Their Lordships accepted, I think, that Reg5 did not override Reg3 or Reg4: at 163. It was the effect of Reg3 to which most attention was directed. That regulation is in terms relevantly similar to Reg67(2). Lord Porter: at 164-5; said: "The regulations do not specify the distance between him (the driver) and the crossing at which his ability to see must be tested, and therefore I think it must be at a reasonable distance. Lord du Parcq, then du Parcq LJ, adverted to this approach to the matter in his dissenting judgment in Chisholm v London Passenger Transport Board [1939] 1 KB 426, 449, when he said: 'It is, I think, a reasonable view that if a motorist, keeping a good look-out and going at such a speed that he can pull up in a few feet, sees a foot passenger come upon the crossing so late that it is impossible for the car to stop before reaching the crossing, the motorist will not be guilty of a breach of the regulations'.... My Lords, I quoted from this judgment because I find myself in general agreement with the principle that the moment at which the motorist must be able to see whether the crossing is clear or not does not continue until the crossing is reached, but, with profound respect, I am unable to accept the suggestion that the distance up to which the crossing must be observed to be empty persists up to a few feet or for that matter fifteen or twenty feet. I think the true position is that the motorist must be able to see whether the crossing is clear or not up to the time when, going at the speed he is going, provided it is a reasonable speed, he would be able to stop before reaching the crossing." In that case, the view of the crossing which the bus driver had as he approached it was obscured by a taxi-cab "drawn up close to the kerb with its wheels actually on and blocking part of the pedestrian crossing" and the bus driver's view was "masked by the width of the taxi-cab". In considering the effect of the obstruction of the driver's view of the crossing in this way, Lord Porter: at 165-6; said: "Applying that principle to the present case, it leaves the driver of the bus guilty of a breach of the regulations because, in my opinion, had he had a clear view of the crossing uninterrupted by the presence of the taxi-cab he could, going at the speed he was going, have pulled up in time. In other words, before he had \WROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v AYTEN ERGUB (Mahoney AP) reached the spot at which it was no longer incumbent on him to see that the crossing was clear his vision was hindered by the taxi-cab, and his inability to see whether there was or was not anyone on the crossing at the moment was in my view the cause of the accident. As it was, though he could not see the lady until after she had emerged from the front of the taxi-cab, he almost managed to stop before reaching the crossing and so to avoid the accident. Had he had the second or so more time which would have been afforded him by seeing her step onto the crossing he would have been able to avoid it." See also the views expressed by Lord Wright: at 170 et seq; Lord Uthwatt: at 172-3; Lord du Parcq: at 175; and Lord Morton of Henryton: at 179-80. The principle adopted by their Lordships is in my opinion applicable in relation to Reg67(2). A more difficult question arises as to the effect of the failure by a pedestrian to obey provisions such as those contained in Reg6A of the General Traffic (Pedestrian) Regulations. There was no regulation of that kind in question in the Upson case. But Lord du Parcq: at 175; said: "My Lords, the learned Master of the Rolls has stated with great clarity a view of the law of negligence which, in my opinion, ought not to receive the approval of your Lordships' House. 'The driver of the omnibus', the Master of the Rolls said: [1947] KB 930, 935; 'was entitled to assume that the plaintiff, like other pedestrians, would conform to common sense and ordinary care in the presence of an adverse signal, particularly in view of the provisions of the Highway Code'. The Master of the Rolls then quoted the instruction to pedestrians in the Highway Code by which they are advised 'at control crossings...' to 'cross the road only when the appropriate line of traffic is held up'. Dealing with the admitted fact that the appellants' driver was well aware that foot passengers do frequently use a crossing when the lights are in favour of the vehicular traffic on the road, he said: at 937-8; 'The fact that a driver knows that other people on occasions do things that no careful driver would be expected to anticipate does not mean that he is under a duty to anticipate such action.' It follows from these premises that the appellants' driver was 'entitled to drive on the assumption that no pedestrian would disobey the light signal.' The presence of the taxi-cab which obscured his view made no difference. There was no evidence of negligence. Therefore, as the alleged breach of regulation was 'relied on as evidence of negligence and nothing more, the case against the appellant failed. My Lords, if the premises are granted this reasoning is impeccable, but I do not accept the premises as sound. It is assumed in them that a pedestrian is 'disobeying' an 'adverse' signal if he crosses a light-controlled 'pedestrian crossing' at a time when the green light is signalling to vehicular traffic permission to advance, whereas in truth the pedestrian is under no legal compulsion to keep off the crossing at such a time, and the signal is never 'adverse' to him in the sense that it prohibits him from crossing. The most that can be said is that he often takes a risk, which may be such that it is negligent to take it, if he crosses when the traffic is not being held up. If he crosses while the traffic is being permitted to proceed, he deprives himself, to some extent, of the special protection which the 'pedestrian crossing' is designed to give to pedestrians. He does not, however, lose the protection which Reg3 affords." In the present case, Reg6A did prohibit the plaintiff crossing when he did. It is therefore necessary tv determine whether it was the intention of Reg6A to withdraw from a pedestrian crossing in breach of it any or all of the protection given to him by Reg67(2). 6 UNREPORTED JUDGMENTS In my opinion Reg6A did not have that intention. It remained the duty of a driver to proceed at such a speed as to be able "if necessary" to stop before reaching the crossing and to give way to a person already on the crossing. The generality of Reg67(2)(a) is qualified by the words "if necessary" and considerations analogous to those referred to in Upson's case would I think be applicable. The breach of Reg6A by the pedestrian would, of course, be of significance in determining whether, in a particular case, the driver was negligent under the general law and the extent to which the pedestrian was responsible for what occurred. But the duties imposed by Reg67 are, I think, not negatived by the fact that the pedestrian was in breach of Reg6A. In my opinion, therefore, Twigg DCJ was correct in holding the motor cyclist guilty of negligence. (2) CONTRIBUTORY NEGLIGENCE: It is accepted that the plaintiff was to an extent responsible for the damage which he suffered. His Honour's assessment of his responsibility was one-third. In the circumstances, I do not differ from his Honour's conclusion in that regard. But the motor cyclist was responsible to a greater extent for what occurred. The plaintiff was in view on the pedestrian crossing, with others, during the whole of the time he walked from one side of the street almost to the other. Subject to the possibility of being obscured for a time by the truck, he was in plain view and there was no reason why he should not have been seen. With respect to those who may be of a different view, I find it difficult to understand how, if others also were on the crossing, a cyclist approaching it who had kept a proper look-out would not have seen that there were people on it and have taken precautions accordingly. For him to have struck the plaintiff about one metre from the kerb involves the probability that his look-out was particularly deficient. I would not interfere with the judge's assessment. (3) DAMAGES: The judge awarded the plaintiff $2560 for loss of wages for the period of a few weeks he was absent from work, added interest and out-of-pocket expenses, and included general damages of $30,000. The judge accepted the period of the plaintiff's incapacity and I see no reason why the award of loss of wages should be disturbed. The appellant GIO submitted that the award of general damages $30,000 was appealably excessive and that the award should have been $15-20,000. The plaintiff suffered injuries to his right knee, right thumb and left shin and multiple bruising and lacerations. The interphalangeal joint of his left thumb was dislocated. His right knee was swollen and it was aspirated at the hospital. His shin laceration required twelve stitches. He was in hospital for over a week and paid visits to the fracture clinic until 27 June 1985. The judge found that he had suffered "a right shoulder whiplash-type injury which has caused him considerable pain, he has extensive loss of his left thumb which causes him considerable inconvenience in his work and he has been restricted by the injuries caused in his usual healthy life prior to the-accident, particularly in relation to his sporting activities". The assessment of general damages is, in the relevant sense, a discretionary matter. It has not been suggested that there was any error in principle in what his Honour did. In the circumstances, I do not think that the assessment of general damages went beyond what was open to the judge in the exercise of a broad discretionary judgment. For these reasons, I am of opinion that the appeal should be dismissed with costs. \ROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v AYTEN ERGUL (Clarké JA) Clarke JA The facts are set out in the judgments of Mahoney and Meagher JJA. Subject to what appears below I am content to adopt their statements of the facts and their conclusions on the damages issue. The respondent was struck when in the lane nearest the kerb, having traversed the major portion of the roadway. He was in a pedestrian crossing but was walking against the lights. Indeed he had set out to cross the road deliberately and with full knowledge that he was taking a calculated risk. He did not see what struck him at any time. He failed to keep a proper lookout and it is probable that the vehicle (if that is what struck him) was obscured by the truck travelling in the centre lane. All that he saw was the truck which appeared to be travelling at about 40 kph and the last time he saw it was when he was in the middle of the road and it was about 50 to 60 metres from the crossing. It is apparent therefore that once he reached the centre of the road he paid no further attention to traffic approaching the crossing. Despite the sparseness of the evidence I agree that the inference that he was struck by a motor vehicle or cycle was open and should be drawn. But I do not think there is any evidence from which it could be inferred that the vehicle or cycle was travelling at a speed appreciably greater than 40 kph. Nor do I accept that it should be inferred that the driver (rider) had any appreciable time in which to see that the respondent was walking in the crossing. For all we know the front of the truck might have been level, or almost level, with the front of the mystery vehicle (cycle). Contrary to what appears in the other judgments I do not accept that where a driver is driving his or her vehicle in a busy street at peak hour at 40 kmph beside a truck, which obscures his or her vision to the right he or she is obliged to slow down when approaching a pedestrian crossing controlled by lights when the lights are in his or her favour to such an extent so that he or she is able to stop instantaneously if some foolish pedestrian has embarked on a foolhardy crossing. If drivers throughout the metropolitan area all drove in that way they would bring the traffic to a standstill. For instance, there are about 66 sets of traffic control lights on Parramatta Road between Central Station and Parramatta and if every driver approached the lights, when in his or her favour, in the way suggested by the majority they would create havoc during peak hour traffic. However, since the advent of compulsory insurance, and consequential notions of risk sharing, the courts have, in substance, elevated the 'reasonably prudent driver' to the role of the perfectionist. Or to put the same proposition in Professor Fleming's words (Law of Torts, 7th Ed, 19) "the fault requirement has become greatly diluted under the collective influence of compulsory insurance". The course of decisions is too well established for me to be able to take a different approach and, in the circumstances, while I believe that social security schemes are the province of governments, I am content to agree with the majority on the issue of negligence. I express no opinion, however, on the meaning of the regulations and their effect on a negligence action. Where I do disagree with the majority is on the challenge to the apportionment. In my view the trial judge's assessment is wholly erroneous. The respondent deliberately embarked on a dangerous course and the driver (rider) has been shown to have departed only to a very small degree from the required standard. The words of Lord Pearce in "The Miraflores" 1967 AC 826 at 847-8 are apt: 8 UNREPORTED JUDGMENTS "Tt is axiomatic that a person who embarks on a deliberate act of negligence should, in general, bear a greater degree of fault than one who fails to cope adequately with the resulting crisis which is thus thrust upon him... the driver who deliberately goes around a corner on the wrong side should, as a rule, find himself more harshly judged than the negligent driver who fails to react promptly enough to the unexpected problem thereby created. For all humans can refrain from deliberately breaking well known safety rules; but 'tis not in mortals to command the perfect reaction to a crisis; and many fall short at times of that degree which reasonable care demands." The driver (rider) failed to respond to a crisis. The percentages should, in my opinion, be reversed. Meagher JA This is an appeal from a decision of Associate Judge Twigg in favour of a plaintiff (the present respondent) arising out of an accident which occurred on Friday 7 June 1985. The plaintiff was crossing Beamish Street, Campsie on a pedestrian crossing. Perhaps stupidly, he did so when the traffic lights showed a red "Don't Walk" sign. He took a calculated risk. Other people in Campsie often crossed when the lights were red; and indeed, on this occasion, two or three other pedestrians walked across the street on the crossing ahead of the plaintiff. The street seems to be fairly wide, with two lanes going north and two going south. Before crossing, the plaintiff looked to his left and saw nothing coming except a loaded truck about 100 yards away. By the time he had reached the median strip, which divides the northern from the southern lanes, he looked again and once more saw nothing but the truck, but by this time it had advanced about 40 yards, so that it was now 60 yards away. He continued on this path, but before he reached the kerb towards which he was walking he was knocked down by some vehicle. He suffered severe, but not major, injuries to his right shoulder, neck, right knee and left thumb. Almost everything else in the case except what I have recited is the subject of disputation. In the first place, there is the problem of identifying what it was which struck the plaintiff. Mr Russell, counsel for the appellant, suggested that it might be a bicycle or even a human being. He pointed out that nobody saw any assailant vehicle. However, like his Honour, I would have thought that the nature of the injuries suffered betokens an assault by either a motor bike or a motor vehicle. The next problem is whether that motor bike or motor vehicle was negligent. The plaintiff did not see it. All that he saw on the road was the loaded truck, which was driving on the median lane. It would therefore necessarily follow that the motor vehicle or motor bike in question was driving in the inside land and was obscured from the plaintiff's vision by the truck. Moreover, if the plaintiff's vision of the bike or vehicle was obscured, the driver of that bike or vehicle would have had no vision of the plaintiff. Although the facts are a trifle slight, I think his Honour was correct in drawing an inference that, on the balance of probabilities, the bike or vehicle was either being driven too quickly or was not keeping a look out, or both. Otherwise, it is not easy to see how the accident could happen. It is common knowledge that pedestrians cross roads at pedestrian crossings both with the lights and against the lights. It is therefore a breach of duty for a driver in the inside lane with his vision obscured to drive so fast that he cannot stop immediately if a pedestrian emerges. It follows that, in my opinion, his Honour's finding of negligence is immune from attack. \WROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v AYTEN ERGU& (Meagher JA) The next question concerns contributory negligence. Certainly the plaintiff was reckless, even if other pedestrians shared his recklessness. But his Honour took this into account in apportioning blame as to one-third to the plaintiff and two-thirds to the defendant. Bearing in mind the frequent High Court instruction to intermediate appellate courts about reviewing trial judges in their assessment of the proportions of contributory negligence, I would not tamper with his Honour's assessment. Nor would I alter his Honour's award of $30,000 for general damages, although I think it is a touch on the high side. Finally, although the calculation of the number of weeks which the plaintiff was out of work is probably defective, the amount involved is to trivial as not to require correction. In my view, the appeal should be dismissed with costs. Appeal dismissed with costs. Counsel: Appellant: MR K P REWELL Respondent: MISS S NORTON Solicitors: Appellant: SOLICITOR FOR GIO Respondent: L J SHARPE and CO