CALDWELL v DEKA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, CLARKE and MEAGHER JJA 16 April 1993, 16 June 1993 [1993] NSWCA 47 NEGLIGENCE — motor vehicles — whether breach of duty of care — extent of duty owed to pedestrians by drivers — pedestrian emerges into lane of traffic from between stationary vehicles waiting at lights — motor vehicle travelling 30-40 kilometres per hour strikes pedestrian causing serious injuries — motorist agrees that he was watching traffic lights waiting for them to change from red to green — tendency of pedestrians near traffic lights to cross between traffic — held: (Kirby P and Clarke JA; Meagher JA dissenting): (1) The trial judge (Knoblanche DCJ) erred in rejecting the plaintiff's case that the driver concentrated on the traffic lights to the exclusion of the risk of pedestrians; (2) In the circumstances, negligence to some degree, on the part of the driver, was established. Stewart v Carnell (1984) 2 MVR 147 (CA); Winters v Davidson (1989) 9 MVR 239 (CA); Boyd v Elliott, Court of Appeal, unreported, 10 July 1992 considered; (3) In an apportionment for contributory negligence the plaintiff's contribution was 80% and the defendant's 20%; (4) New trial ordered as to damages to be reduced in accordance with such contribution for contributory negligence. MOTOR VEHICLES - negligence - duty of care - motorist approaching intersection controlled by lights - duty to be alert to pedestrians crossing between traffic to take advantage of stopped vehicles. APPEAL - rehearing - duty to respect findings of primary judge based on impressions of credibility - held: (Kirby P and Clarke JA; Meagher JA dissenting): The Court of Appeal in a rehearing is entitled and required to reconsider the evidence, controlled where necessary by findings express or implied on the part of the primary judge derived from the advantage that judge enjoyed of seeing and hearing witnesses and assessing their credibility. Abalos v Australian Postal Commission (1990) 171 CLR 167 applied. Kirby P Before the Court is an appeal from a judgment of the District Court entered by Knoblanche DCJ in favour of a defendant in a motor vehicle damages case. At trial, by agreement between the parties, the issue of negligence was separated for determination. The issue of damages was postponed, save for one witness (the late Professor Fred Hollows) whose testimony was taken because he was suffering from an illness which later claimed his life. Knoblanche DCJ found that the subject collision might have caused "very serious, extensive reduction of visual acuity in the plaintiff'. In fact, the Court was told the plaintiff is now completely blind. As a result of the judgment of the District Court she recovered no damages. She was ordered to pay the costs of the trial. She has appealed to this Court against that judgment and order. The uncontested, applicable principles of law There has been no real dispute about the legal principles applicable to the appeal. The onus rests upon a plaintiff in a case such as the present, where an injured pedestrian sues an allegedly 2 UNREPORTED JUDGMENTS negligent motorist, to prove that the injuries and disabilities complained of were caused or contributed to by a want of care on the part of the motorist. There is no absolute liability for motor vehicle injuries in this State, although judges and others have been suggesting the need for a no-fault scheme for many years. See eg [1974] | NSWLR xiii. Cf Report of the National Committee of Inquiry into Compensation and Rehabilitation in Australia 1974. The plaintiff must still prove negligence. The defendant is not obliged to disprove it. The criterion of negligence is the standard required of an ordinarily careful driver in charge of a motor vehicle upon a road in this State. Although not absolute, the duty is a high one. This is so because of the risks of serious injury which almost inevitably follow a collision between a motor vehicle and a pedestrian. The high standard of vigilance and care imposed upon motorists derives from a recognition by the law of the fact that, usually, the motorist is in the best position, and has the responsibility, to control events which might lead to a collision between (relevantly) the motor vehicle and a pedestrian. In a number of cases this Court has emphasised that the standard of care expected of motorists does not extend to avoiding collisions with pedestrians in every conceivable circumstance of the conduct of such persons. In particular, the law does not extend to avoiding impact where a pedestrian has exhibited irrational or clearly careless conduct which disregards his or her own safety and is, effectively, the sole cause of the collision. See eg Stewart v Carnell (1984) 2 MVR 147 (CA); Winters v Davidson (1989) 9 MVR 239 (CA) and Boyd v Elliott, Court of Appeal, unreported, 10 July 1992. It will often be a fine line between a case in which a court concludes that there is no negligence on the part of the motorist but only on the part of the pedestrian (on the one hand) and where the court concludes that there is some negligence on the part of the motorist but most of the fault lies with the contributory negligence of the pedestrian (on the other). A matter of judgment is involved. Even within this Court the views of judges sometimes differ. So it was in Kappos v Berghoffer, Court of Appeal, unreported, 23 May 1990, where I differed from the majority view of Meagher and Handley JJA. Most cases such as the present are determined on their facts. Those facts are found, in the first instance, by the primary judge. He or she has the opportunity to see and assess witnesses, as this Court does not, even though it conducts its appeal by way of rehearing. See Supreme Court Act 1970, s75A. Despite the rehearing, and out of a recognition of the advantages of the primary judge, the Court of Appeal must decide the case, normally within the confines of the evidence given at trial. It must take into account any explicit relevant findings or implicit conclusions of the primary judge as to the credit of witnesses. It must defer to any other conclusions which the judge may have reached, affected by the subtle or not so subtle influences of demeanour which impinge upon his or her decision. See Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178. I approach the present appeal keeping the foregoing principles, which I have stated in terms of necessary brevity and generality, carefully in mind. The general circumstances of the collision Ms Rita Caldwell (the appellant) was injured on 22 September 1983. At the time of the incident she was 57 years of age. She was 64 years of age at trial and is now aged 67. On the morning of the day in question she had occasion to proceed from her residence in Neutral Bay to Cremorne. Her purpose was to visit a boot repairer in Cremorne. She walked up to Cremorne Junction and reached a point where URJ CALDWELL v DEKA (Kirby P) 3 Military Road comes to an intersection, controlled by traffic lights. To the north, Winnie Street joins Military Road. To the south there are two streets near the intersection. One is Murdoch Street and the other Cranbrook Street. To the unenlightened eye, Murdoch Street might seem to be the continuation of Winnie Street on the opposite side of Military Road, although they are not in precise alignment as a single cross-street normally would be. The general circumstances of what occurred were not disputed. The lights controlling traffic in Military Road were at relevant times showing red to that traffic. A number of vehicles were stationary on the northern side of a median strip which divides the road. There was no traffic in the southern lane of Military Road at a point where the appellant commenced to cross. She traversed the southern side of Military Road without difficulty, because it was clear. She then proceeded between stationary vehicles in the two lanes closest to the median strip on the northern side of Military Road. As the vehicles were stationary for the lights, she accomplished this move without difficulty. She then passed into the third lane of the northern side of Military Road, the one adjacent to the footpath which was her intended destination. It was in that lane that Mr Phillip Deka (the respondent) was proceeding in a panel van which he was driving. Mr Deka could not stop his vehicle in time to avoid collision with the appellant who appeared suddenly in front of him. In the collision which followed, the appellant was seriously injured, including in respect of the loss of sight which arguably is attributable to retinal detachments in each eye caused by the trauma of the collision. The appellant's case against the respondent at trial was that he was negligent in: 1. Driving his vehicle too fast in the circumstances; 2. Failing to keep a proper lookout for persons such as herself; and 3. Failing to warn her of his approach. Unfortunately, as a result of the head injuries which she suffered, the appellant is afflicted by amnesia concerning precisely what occurred in the accident. She does recall walking along the southern side of Military Road. She claimed that she reached the corner of that road and Murdoch Street and that she there waited until the traffic lights changed in her favour to green. Her evidence was that she did not step off the curb until the lights changed and the signal said "Walk". If this had been the case and the appellant had been injured whilst crossing at a pedestrian foot-crossing with the benefit of traffic lights, her case against the respondent would have been irresistible. However, the trial judge rejected this version of events. He accepted, instead, that the appellant had walked briskly across Military Road at a distance short of the lights controlling the intersection. She had emerged between stationary vehicles into the lane in which the respondent was proceeding. This finding, expressed in such generality, was not contested by the appellant for the purposes of the appeal. It was clearly open to the judge to so find on the evidence of the respondent alone which he accepted and which stood uncontradicted by any detailed evidence on the part of the appellant. As it happened, the judge had available to him evidence of two other witnesses who supported the respondent's testimony and sustained, if need be, on another basis, his general description of how the accident occurred. Sitting in his taxi at a "Shell" service station on the southern corner of the intersection of Military Road and Murdoch Street was Mr Michael Hendry. He gave evidence that he saw the appellant "walking briskly" from the southern side "all the way until the point 4 UNREPORTED JUDGMENTS where she was struck by the vehicle". He claimed that he had a clear view of her from the time she left the kerb until the time she was struck although he conceded that there were "some stopped vehicles" in the two inner lanes of the northern side of the road. He said that he had seen the respondent's vehicle "moments before it struck her" and realised that "it was an imminent collision going to occur". He went on: "He braked very hard and got to stop virtually at the point of impact. She was not carried for any distance particularly, from the vehicle, so I was quite impressed he was able to stop as fast as he did." Mr Hendry denied that the appellant had crossed at the pedestrian crossing controlled by the traffic lights. On his description, she was "some 20 metres or so from the corner virtually adjacent to my position... give or take a few feet". The other element of evidence supporting the general description of how the accident occurred was that of the police officer, Constable Lester Hart. He was a probationary constable when he was summoned to the scene of the appellant's accident. The appellant had been taken away by the time he arrived. But Constable Hart spoke with two witnesses, Messrs Hendry and Bolton as well as with the respondent. The respondent indicated the point of impact. The constable then proceeded to pace out that point back from the corner of Military Road with Winnie Street. It was 20 paces. Constable Hart's notebook, written up at the scene of the accident, had been lost by the time these proceedings came on for trial. However, a Traffic Accident Report (P4) was in existence which, it was said, contained the substance of the entries in the contemporaneous record. This gave the accident as happening "20 m west of Murdoch Street". It was agreed that "Murdoch" should be replaced by "Winnie", the mistake having occurred in the belief that Winnie Street was a continuation of Murdoch Street as it is not. The general description contained in the Traffic Accident Report was: "Veh 2 travelling in lane No | when... pedestrian ran from between stopped vehicles in lane 2." Trial judge's decision Knoblanche DCJ recounted the evidence carefully. He was not inclined to accept that the appellant had "run" from between the two trucks. He preferred Mr Hendry's description that she was "walking briskly". But he made it clear that he regarded the respondent as "an honest man doing the best he could to give the court a truthful and accurate version of what he saw and what he did on that day, now something more than seven years past". He concluded that the appellant's progress was "in relative terms brisk or quick" but he thought it was such that a person in the respondent's position might have thought of it as running. His Honour concluded, in a way not now contested, that the appellant had not crossed at the pedestrian lights but between stationary vehicles as described. He judged that the respondent had applied his brakes at the end of the ordinary reaction time after he had seen her and "did the best he could to stop". He rejected the argument that if Mr Hendry had a continuous view of the appellant, so too could have the respondent: "Tt is my opinion that the defendant's chances of seeing the plaintiff unobscured before she emerged from between the vehicles on his right were, for a number of reasons, very probably far less than those of Mr Hendry. I am not satisfied that there was any reasonable chance of his seeing her as he approached the place where she emerged into the number one lane." URJ CALDWELL v DEKA (Kirby P) 5 In response to the three ways, set out above, that the appellant presented her case, Knoblanche DCJ rejected the suggestion that the respondent had driven too fast in the circumstances. As to the contention of a failure to keep a proper lookout he said: "T am not satisfied that the possibility of any reckless pedestrian, as was this plaintiff, emerging so close to a controlled pedestrian crossing, and without what would seem to be so much as a look down the number one lane, is sufficient that reasonable care requires progress at a speed that would have the probability of avoiding such a pedestrian who stepped into the number one lane all of a sudden." As to the suggested failure to warn he said: "T suppose the defendant could have driven along with his horn sounding continuously, against the chance that some reckless pedestrian, exercising no proper care for his own safety, might pop out into the number one lane rapidly, without so much as a pause, on the median strip or the lane line between lanes two and three, for a look to the left. Reasonable care does not require that to be done." In this Court, by a most painstaking analysis of the evidence, senior counsel for the appellant endeavoured to displace the findings of Knoblanche DCJ in respect of precisely where the appellant had crossed the road, and how many and what size vehicles allegedly obscured the vision of the respondent as he approached the point of impact. With respect, I do not believe that any of these criticisms has merit. The judgment in question was a careful one and it is not to be overcome by fastidious complaints of this kind. This Court must pay more than lip service to the primacy of the trial judge, to the advantages which he enjoyed and the conclusions which he reached. We must keep in mind that a further independent witness existed (Mr Bolton) whose name and address were recorded in the Accident Report form. Whilst the respondent called Mr Hendry, the appellant failed to call Mr Bolton. No explanation was given for his absence. It can probably be inferred that there was nothing in his testimony which would have helped the appellant, otherwise, in such a serious predicament, in a case otherwise so carefully prepared, it seems likely that her representatives would have called him to give evidence. The trial judge's error However, in one particular matter, it seems clear that Knoblanche DCJ erred in rejecting the submission put for the appellant. He said: "[Senior counsel for the appellant] did argue at one stage that the real scenario, for the defendant's part, was that he came along this section of road looking at the traffic lights, which were red, and concentrating upon them, so as to reduce his awareness of other things in particular, movements of pedestrians from his right. [Counsel] suggested that this procedure was motivated by the defendant watching for the light to turn green so he could 'plant his foot and be off'. I do not think that that explanation is at all likely." The only justification for this conclusion offered by Knoblanche DCJ was that the respondent had given evidence (which he accepted) that he intended to turn into a hamburger facility (McDonald's) off Military Road on the far side of the intersection, after he had traversed it. But when the evidence of the respondent is scrutinized, it does appear that his sworn evidence lends real support to the submission put for the appellant. The crucial question, as I approach the appeal, is whether, on the respondent's own testimony, he was unduly concentrating his attention upon the red light which was controlling the intersection that he was 6 UNREPORTED JUDGMENTS approaching to the diminution of the vigilance which he should have been showing to all of the circumstances of the environment, including to the risk of pedestrians coming between parked vehicles. This was the respondent's evidence on this point: "Q: You have told us when you were 30 or 40 - sorry, you were 20 or 30 yards from the intersection you were still doing 30 or 40 kilometres an hour with your foot on the brake? A: That is correct. Q: May we take it you were just slowing down gently? A: Yes. Q: And were you aware that the light was about to change to green? A: I had no idea. Q: So you were 20 or 30 yards away from the intersection and you were still doing 30 or 40 kilometres an hour and you had no idea the light was going to change to green, is that right? A: That is right. Q: What were you looking at if you were not looking at the lights to see that the light was about to change. What were you looking at? A: I was looking at the lights. Q: To see whether or not they were going to change and so it would not be necessary for you to come to a stop? A: No. Q: Why were you looking at the lights? A: Do you want me to ignore them totally and just go straight through? That is a ridiculous question. Q: What I do want you to do is answer my question. Why were you looking at the lights? A: Making sure that I pulled up if the light was red. Q: So you were looking at the lights for the purpose of ascertaining whether or not the light remained red and so it became necessary for you to come to a complete stop, is that right? A: Yes. Q: And, of course, when you saw that it changed to green as you told us, you removed your foot from the brake and put your foot on the accelerator? A: No, I had my foot off the brake and almost accelerated but I didn't. Q: Did you tell anyone that the light had changed to green before the accident happened? A: I don't remember that. Q: I put it to you that indeed the fact is that the light was red at all times including the time when the accident happened? A: No, it wasn't. Q: Did you tell Constable Hart on the day that indeed it happened when the light was green for you? A: I don't remember. Q: Well, of course, if it had happened with you having the green light, that would have been very important in your mind, would it not, that this pedestrian was on the road in your path when you had a green light? A: I know. *Q: Please, please listen to the question. If that were the fact that you struck this pedestrian when you had a green light in your favour, that would have been very important in your mind wouldn't it? A: Why would it have been important in my mind?" An interchange then took place with his Honour and after a few more questions the cross examination went on: "Q: You would have been very well aware, would you not, that pedestrians in Sydney habitually cross not necessarily within the pedestrian crossing but within a considerable distance of yards of a pedestrian crossing? OBJECTION. Q: I put it to you that you were aware at the time that pedestrians in Sydney habitually crossed not necessarily at but within a considerable distance of yards of pedestrian crossings? A: Yes, I was aware but not between traffic. URJ CALDWELL v DEKA (Kirby P) 7 Q: Not between traffic. You are suggesting that it only happens on clear roads? A: No. Q: You are suggesting that pedestrians never go between traffic, is that what you are suggesting? A: No, not at all. " And after a few more questions, counsel returned to the lights: "Q:... could you then see the traffic lights? A: You can see the traffic lights when I pulled into the lane. Q And were the traffic lights... A: Red. Q: So from a distance of 200 metres away you had a view of the red light which you were approaching? A: That is right. Q: And still 20 or 30 yards from that light you were still doing 30 or 40 kilometres an hour? A: That is right. Q: And you were watching the light for the purpose of determining whether or not it remained red? A: That is right. " Conclusion: some negligence; high contributory negligence The foregoing evidence, which comes exclusively from the respondent himself and is not contested or in doubt - supports the submission which was put to Knoblanche DCJ by counsel for the appellant but rejected by his Honour. A proper reading of that evidence - fully accepting the respondent's testimony and truthfulness - suggests that the respondent was concentrating on the lights. In doing so he had reduced his awareness of, and attention to, other things: including the potential movement of pedestrians on his right. Even if, as the primary judge concluded, it was not possible for the respondent to see the appellant cross three clear lanes of traffic on the southern side of Military Road, her emergence between the stationary traffic on the respondent's right was one of the distinct risks against which he should have been taking care. True, it was not a high or ever-present risk. But it was a real risk, not a far-fetched or fanciful one. See Nagle v Rottnest Island Authority (1993) 67 ALJR 426 (HC) at 429. Ordinarily it is by no means suicidal for a careful pedestrian in a suburb of Sydney to take such a risk. It is often done as any judge who ventures outside his cloisters will see. Indeed, the respondent acknowledged what the common experience of this Court can in any case affirm: it is by no means uncommon for pedestrians in Sydney and its suburbs, anxious to cross a road, noticing that the traffic is stopped in obedience to nearby red lights but fearful of losing the occasion of that stoppage if proceeding to the lights themselves, to proceed across the road at a point short of the traffic lights. It may be regrettable. It may even be against the law. But it happens. It must therefore be taken into account by careful drivers. Of course, as Knoblanche DCJ pointed out, crossing a road in this way involves a failure to take care for the pedestrian's own safety. In some circumstances it may be a breach of the Motor Traffic Regulations. It certainly amounts to contributory negligence if damage occurs. But these are not the questions in issue. The only question relevant at this stage is whether, in his sworn evidence of close concentration on the traffic lights the respondent (who is to be fully believed) showed a lack of proper attention to the risk which he ultimately accepted: that pedestrians such as the appellant might emerge between stationary vehicles close to the red lights. As put to Knoblanche DCJ, this is a real risk against which motorists in control of potentially dangerous motor vehicles must drive in the inner metropolitan area of Sydney. It was a risk of which the respondent was aware, or should be taken to have been aware, as he approached the intersection of Military Road with Winnie Street in Cremorne. Instead, his 8 UNREPORTED JUDGMENTS evidence justifies the conclusion that he had his eye and his attention focused on the red light, waiting for it to turn green so that he could proceed across the intersection to the hamburger outlet where he planned to stop. Two final questions are then posed. The first, as a pre-condition to the establishment of negligence, is whether the evidence would justify the conclusion that a reasonable driver, vigilant against the possibility of a pedestrian emerging from between stationary vehicles on his right could, in any case, have avoided impact with this appellant in the circumstances. By all accounts she was about 10 feet from him when first seen. Allowance must be made for the normal interval of reaction time. Allowance must also be made for the braking distance of a vehicle travelling at any speed. The respondent said that he was travelling at 30 to 40 kilometres an hour. As described by Mr Hendry, he almost avoided striking the appellant at this speed. I would conclude that if he had only been travelling a little more slowly and with more vigilance to the possibility of an emerging pedestrian, such as occurred, the impact would have been avoided. The grievous injury suffered by the appellant would not have occurred. In this sense, the lack of a more global attention to the whole of the environment confronting him from his motor vehicle was the cause, in part at least, of the appellant's injuries. The second question concerns the apportionment for contributory negligence, the primary issue being determined against the respondent. It was argued for the appellant that momentary inadvertence on her part (eg in failing to look down the lane before emerging from between traffic) would not be marked by a high apportionment of contributory negligence ascribed to her. I cannot agree with this. Just as it would be a mistake to lay down a general rule that any pedestrian emerging from between stopped or parked traffic never has a case against a vehicle that strikes him or her, so it is necessary, in apportioning for contributory negligence, to take account of the whole of the circumstances and the comparative contribution of the tortfeasor and the plaintiff to the happening of the collision. If I do this, I believe that the proper apportionment of blame is 20% to the respondent and 80% to the appellant. True, he was in charge of the potentially lethal vehicle as moving cars are sometimes described. But she was in charge of her movement. Proceeding, as found, outside the controlled pedestrian crossing, she would have known that she had an obligation to look to her left before crossing the lane in which the respondent was proceeding. Even if pedestrians cross short of lights to take advantage of stopped traffic, it is fundamental that they check for their safety before emerging from between stationary vehicles that might obscure sight of them. The parties did not ask for a retrial of the issue of liability. Having regard to the great delays which have already occurred in this litigation, and the view which I have reached, I believe that it is entirely safe for this Court to proceed to give effect to its own conclusion. That conclusion is, in any case, grounded in the evidence of the respondent which the trial judge accepted. It does not involve rejection of findings of the trial judge based upon his impression of witnesses. It accepts those findings. Error being shown in the conclusions derived from one important part of the evidence, this Court is entitled, and obliged, to proceed in the rehearing to form and give effect to its own view. See Warren v Coombes (1979) 142 CLR 531, 551; Chambers v Jobling (1986) 7 NSWLR 1 (CA), 11; Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd trading as "Uncle Bens of Australia" (1992) 27 NSWLR 326 (CA), 351ff. Orders The orders which I therefore propose are: URJ CALDWELL v DEKA (Meagher JA) 9 1. Appeal allowed; 2. Set aside the judgment in favour of the defendant entered in the District Court; 3. In lieu thereof order that judgment be entered in favour of the plaintiff in that court; 4. Apportion contributory negligence on the part of the plaintiff as 80%; 5. Return the proceedings to the District Court for assessment of the plaintiff's damages reduced by the said apportionment of contributory negligence on her part; 6. Order the defendant to pay the plaintiffs costs of the first trial in the District Court; 7. Order the respondent to pay the appellant's costs of the appeal and the respondent to have, in respect thereof, if otherwise so qualified, a certificate under the Suitors' Fund Act 1951. Clarke JA I agree with the orders proposed by the Learned President generally for the reasons given by him. The appellant crossed the three traffic lanes on the southern side of Military Road at a time when there was no traffic travelling on those lanes. She also traversed the median strip and two of the three lanes on the northern side of Military Road. There were stationary vehicles in those lanes waiting for the traffic control lights to change. The point is that she traversed a large section of a very wide road and the respondent did not see her until she emerged from between stationary vehicles about ten feet in front of him. The trial judge excused the respondent's failure to see her at an earlier point of time on the ground that at the critical moment he was passing a stationary table-top lorry which obscured his view. This was, no doubt, a sound reason for his failure to see the appellant slightly earlier than he in fact did. But it did not present any reason why he had not seen her earlier as she crossed the empty section of the roadway and the median strip. He had, as the trial judge found, changed from the middle to the kerb side lane of Military Road when he was about 200 metres west of the traffic control lights. The roadway was straight and he could see that the lights facing him were red at the time he entered the kerb-side lane. Although there were stationary vehicles in the middle and outside lanes travelling eastward close to the lights, and it can be accepted that there was traffic travelling towards those stationary vehicles, no reason appears why the respondent could not have seen the appellant walking across the road as he approached the lights. It seems to me that the explanation for his failure to see her well before he approached the lights was explained in his own evidence. As the Learned President has pointed out he admitted in cross examination that he was concentrating on the lights because, the lights having been red when he entered the lane 200 metres away, he recognised that they may change to green before he reached them with the consequence that he would not have to stop until he reached McDonalds. In my view, the proper inference to be drawn is that he concentrated all his attention on those lights and disregarded the possibility, of which he was aware, that a pedestrian might emerge from between the stationary vehicles into his lane. If that is so then I think his failure to pay attention to the roadway was in part, at least, a cause of the accident. Accordingly, I agree with the orders proposed by the Learned President. Meagher JA In my view, the appeal should be dismissed with costs. 10 UNREPORTED JUDGMENTS The respondent was travelling at well below the permissible maximum in the area in which he was driving; he was approaching traffic lights which had just turned green; he was also approaching a pedestrian crossing on which there were no pedestrians. He then collided with the appellant who darted out, or at least gave the appearance of darting out, from between two stationary vehicles, one of which obscured his vision. That was the respondent's version; it was verified by independent evidence, and Knoblanche DCJ in a careful judgment accepted it. So should we. In my view, although it is always possible that a pedestrian will behave with nearly suicidal recklessness, and all drivers must realize that fact, drivers are under no duty to conduct themselves as if such a remote - but not fanciful - possibility - is about to crystallize. What unreasonable behaviour did the respondent commit? It is suggested that he was so mesmerized by watching the traffic lights that he did not keep a lookout for aberrant pedestrians. But nothing in the evidence supports that finding. The fact that he was watching the traffic lights did not mean he was not devoting appropriate attention to events on the right and left of him. After all, a driver's primary duty is to look ahead of him. As Mr Barry, learned counsel for the respondent, pointed out, these are the principles applied by this Court in Stewart v Cornell (1987) 2 MVR 147, Winters v Davidson (1989) 9 MVR 239, Boyd v Elliott (unreported, 10 July 1992) and Kappos v Berghoffer (unreported, 30 May 1990). With the greatest respect to my brethren, I do not think the judgment below should be disturbed. 1. Appeal allowed; 2. Set aside the judgment in favour of the defendant entered in the District Court; 3. In lieu thereof order that judgment be entered in favour of the plaintiff in that court; Apportion contributory negligence on the part of the plaintiff as 80%; Return the proceedings to the District Court for assessment of the plaintiff's damages reduced by the said apportionment of contributory negligence on her part; 6. Order the defendant to pay the plaintiff's costs of the first trial in the District Court; 7. Order the respondent to pay the appellant's costs of the appeal and the respondent to have, in respect thereof, if otherwise so qualified, a certificate under the Suitors' Fund Act 1951. ws Counsel for the Appellant: BM Toomey QC / MG Cummings Instructed by: Paul A Curtis and Co Counsel for the Respondent: HG Shore Instructed by: GM Meadows, Solicitor for Government, Insurance Office of New South Wales