LAKEWOOD ELECTRICS PTY LTD and ANOR v CAMPANARO SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION KIRBY P, MAHONEY and POWELL JA 24 March 1995, 24 March 1995 [1995] NSWCA 252 NEGLIGENCE — contributory negligence motor vehicle accident — driver had clear vision on clear day — full opportunity to stop or swerve and avoid collision with pedestrian crossing intersection — primary judge dismissed defence of contributory negligence — ,held: on version of facts accepted, no error was shown — appeal dismissed. NEGLIGENCE — contributory negligence — motor vehicle accident — collision of sports car with pedestrian crossing intersection — clear day and long view — sports car had time to stop or swerve and avoid collision — primary judge (Grove, J.) accepts evidence of witness who sees collision — rejects version of motorist that pedestrian rushed into his path — on appeal — held: (dismissing the appeal) (Kirby, P, Mahoney, JA and Powell, JA concurring): 1. The onus was upon the motorist at trial to establish the defence of contributory negligence and upon him in the appeal to establish that the primary judge was wrong within the version of events which he accepted; 2. Upon that version, notwithstanding the duty of the pedestrian to take simple precautions to protect his own safety, it was not established that the judge erred in dismissing the defence of contributory negligence. Upon the version of events accepted by the Judge, the motorist was the sole cause of the collision: Stewart v Carnell (1984) 2 MVR 147 (NSW, CA), 151 distinguished; Turner v State of New South Wales (1982) 42 ALR 669 (HC) applied. ORDERS Appeal dismissed with costs. Kirby P The Court has before it an appeal from a judgment entered by Grove, J in the Common Law Division of the Supreme Court. His Honour directed judgment in favour of Mr Rolando Campanaro (the respondent) in the sum of $400,000. Originally there was a cross appeal challenging his Honour's quantification of damages. This was abandoned. The sole issue now before the Court is the challenge by the appellants to the rejection of the defence of contributory negligence relied upon by Lakewood Electric Pty Ltd and James Ramsay (the appellants). The appellants were respectively the owner and driver of a motor vehicle, Datsun 280X2 sports car, which came into collision with the respondent, a pedestrian, on 24 January 1983. A PEDESTRIAN IS STRUCK DOWN - NEGLIGENCE IS FOUND The facts found by Grove, J. were as follows. The collision occurred at the intersection of Fairford Road and Bryant Street, Padstow. That intersection is portrayed in coloured photographs which were received into evidence and to which this Court was taken by counsel for the appellants. The respondent was employed at a factory located on the south-east corner of the intersection. The appellants' vehicle was being driven in a southerly direction in Fairford Road in the direction of the intersection of that road with Bryant Street. 2 UNREPORTED JUDGMENTS The collision involving the vehicle and the respondent occurred at about 9.00 am. It was a fine day. The respondent had delivered his own vehicle to a motor repair shop in Bryant Street close to the factory at which he worked, but on the far side of Fairford Road. He had taken advantage of a morning tea break to go to the workshop. He was struck whilst crossing the road upon this mission. As a result of the impact, the respondent suffered retroactive amnesia. He could not recall the exact circumstances of the collision. He was prepared to concede during cross-examination that he had been in a hurry to complete the meeting with the motor car works during the morning tea break at his employment. Grove, J found that there was no reason to conclude that the respondent was running or that he was sprinting, as was suggested to him consequent upon the version of the incident which was given by Mr Ramsay, the driver of the motor vehicle which collided with the respondent. Grove, J was fortified in his conclusion in this regard by the evidence of an eye witness, Mr Raymond Ashburne, which evidence he accepted. A WITNESS WHO IS ACCEPTED DESCRIBES THE ACCIDENT By chance Mr Ashburne, who was the respondent's superior at the factory at which he worked, was driving his motor vehicle in the vicinity of the collision. He had driven the vehicle into the Bryant Street near the intersection with Fairford Road. However, he had forgotten something. He therefore accomplished a U-turn. At the time immediately before the collision he was actually stationary facing in the direction in which the appellant's vehicle was proceeding towards the intersection and towards the respondent. He was waiting to make a right hand tum with safety. This was a prudent precaution, required by law. He had a clear and direct view of the collision. Grove, J described what then happened: "Mr Ashburne reached the intersection and waited to make a right-hand turn to retrace his path. He waited because he could perceive oncoming traffic - the leading vehicle of which was undoubtedly the defendant's vehicle. He saw the plaintiff. He remembers him stopping and apparently making observation to the right and to the left, and then stepping off the pedestrian area - the photographs do not persuade me to dignify it with the description "footpath" - and moved, walking quickly across the road. The plaintiff reached the centre of the road. The observation of Mr Ashburne did not reveal the defendant slowed his vehicle, gave any warning of approach, nor diverged from the path and course upon which it was set. Thus, in approximately the centre of the road, the plaintiff was struck by the front of the defendant's vehicle towards its offside. The conclusion that I draw is that the plaintiff has substantially cross (sic) almost half the road before being struck by the defendant's vehicle. The defendant claims that he had seen the plaintiff emerge from the area of the factory and sprint for some 30 or 40 yards. He said that the plaintiff vanished behind a telegraph pole, which is visible in many of the photographs - the geographical description of which I need not pause to set out - whereupon the plaintiff then sprinted out from behind the pole and into inevitable collision with the defendant's vehicle. I reject this version of events. I believe that the key to the flaw in the defendant's testimony was found in his volunteered information that I thought that the plaintiff, whose presence in the vicinity he was aware of, was going to wait for him. I am satisfied that consequent upon that conclusion, the defendant did nothing other than to continue through the intersection. URJ | LAKEWOOD ELECTRICS PTY LTD and ANOR v CAMPANARO (Kirby P) 3 There are other items of peripheral evidence which persuade me that what Mr Ramsay says now represents a transcendence into memory or what is a wish merely to justify his own situation. For example, he was persuaded that his memory of the road surface was faulty insofar as photographs, apparently taken three days after the accident, show bitumen, where he confidently believed there was gravel. It is beyond dispute that Mr Ashburne was in the motor vehicle immediately in front of the area into which the defendant's vehicle was coming, yet he has no present recollection at all of such or any vehicle being there. I would conclude that in the years that have passed, Mr Ramsay has allowed a conscious and subconscious self-justification in relation to the responsibility for this accident to transcend into what he now believes is a memory. I reject him in favour of the far more likely version of the incident deposed to by Mr Ashburne. It seems to me inevitably that I should find that the defendant is guilty of negligence in that he did not keep a proper look out and that he continued his vehicle in the circumstances where he ought to have known he was creating a danger to a pedestrian on the roadway. I am not satisfied that the defendant has demonstrated that the plaintiff was guilty of contributory negligence. The distance that he had traversed across the road before he was struck suggest that but for the stubborn insistence of the second defendant to keep his vehicle moving without varying speed, direction or anything else, the plaintiff might well have made a safe crossing beyond the range of the vehicle which struck him." THE MOTORIST CHALLENGES THE REJECTION OF CONTRIBUTORY NEGLIGENCE In the appeal, the appellants accepted fully, as I believe by authority they were obliged to do, the trial judge's preference for the evidence of Mr Ashburne and his rejection of the version of Mr Ramsay. Put shortly, Mr Ramsay's version was the respondent had moved quickly or even darted, across into the line of traffic in which Mr Ramsay was proceeding. The issue which is left by the acceptance of the approach which Grove, J took is whether, within the evidence of Mr Ashburne, his Honour erred in the conclusion which he reached that the appellants had failed to establish contributory negligence on the part of the respondent. In his evidence-in-chief Mr Ashburne gave the following testimony: "Q. What did you see then? A. I had seen Mr Campanaro pause, look to the right and left, and then step on to the roadway and start to cross the road. I had seen the vehicle coming towards me which was probably about, estimating about 50 metres away or so. and I did not consider myself to have sufficient time to make a right turn in complete safety, it is a very difficult intersection and there is a lot of accidents at that particular area, so - Q. What did you see? A. Mr Campanaro then stepped out from the kerb and walked across the road and appeared to get into the middle of the road. The vehicle approaching from the north struck him, approximately one-third of the way across from the driver's side of the vehicle. Mr Campanaro then was thrown on to the bonnet, he rolled his head on the windscreen, and as the vehicle was braking sharply on that point of time, he rolled the bonnet on to the ground. HIS HONOUR: Q. Can you tell me whether he was in fact walking at the time of the impact, or was he stationary? A. I didn't actually say that, your Honour." The photographs which were received in evidence show centre lines which are clearly marked. However, it was common ground in the appeal that those lines were not present on the day of due accident. 4 UNREPORTED JUDGMENTS Counsel asked Mr Ashburne: "Q. Are you able to say whereabouts, assuming an imaginary centre line, the vehicle that struck Mr Campanaro was on the surface of Fairford Road? A. I would say the vehicle and Mr Campanaro were probably on or about the centre line coming to it, you know, to the intersection. Q. What did you see after the impact and Mr Campanaro had been projected off the bonnet of the motor vehicle? A. The motor vehicle had, as I said, braked very sharply at that point of time. I was not aware of any braking prior to that, but the vehicle had braked sharply, its nose was down, and it seemed to come to a rest probably about 15 feet past where the point of impact was. Q. Was there room to the left of the position where that car was for it to diverge to the left? A. Yes, there was - there is sufficient room on the carriageway for four vehicles. HIS HONOUR: Q. I think what Mr Ireland meant was, was there sufficient room to diverge to the left and go around Mr Campanaro? A. Yes, yes. Q. You did not hear any sound of a horn before the impact? A. No. IRELAND: Q. What was the weather like at the time? A. It was a bright sunny day, f ne, clear visibility, good road surface, dry road." Under cross examination, Mr Ashburne said: "Q. So you said he looked both ways? A. Yes, he sort of looked to his right and he looked to his left, and then stepped off. Q. At the time he was looking to his right, he was looking north, wasn't he? A. Yes. Q. Where was the defendant's vehicle at the time when the plaintiff was looking to the right? A. Approaching from the north. Q. How far was the approaching vehicle from the corner? A. 50 to 75 metres. Q. Are you saying you saw the plaintiff take that look to the left and right before you noticed the defendant coming, is that what you are saying? A. No. I am saying I noticed the defendant coming, you are sort of cognisant of the things going around you, I noticed the vehicle coming and I noticed Mr Campanaro stepping off the kerb almost simultaneously. Q. So at the time Mr Campanaro stepped off the kerb, the oncoming vehicle was still 50 metres away? A. Yes it was. Q. And that is after Mr Campanaro looked left and right, that correct? A. Yes, that is correct. Q. You said Mr Campanaro walked after having made these observations? A. Yes, he walked quickly to the centre of the road." And under further cross-examination, Mr Ashburne later said: "Q. What distance did he travel from the time he looked to the right, to the point of impact - or around about the centre of the road? What distance would that be from you to some object in the court? A. If I was looking at the road, I would say that the whole four vehicles across the road, so it would probably be around about 20 feet. Q. He had not reached the middle of the road, had he? A. Around about that period, yes, I would say - I don't quite - Q. Use an imaginary -? A. An imaginary centre line of the road, he was walking towards the centre line of the road. Q. You said he was walking quickly, couldn't it be that he was jogging? A. No, he certainly was not jogging. Q. In relation to the imaginary centre line, would you put him on the line or short of the line on the western side? A. I would put him on or around the line. Q. You said he had travelled about 20 feet? A. Yes, approximately. URJ | LAKEWOOD ELECTRICS PTY LTD and ANOR v CAMPANARO (Kirby P) 5 Q. And you saw no change in pace of the vehicle coming from the plaintiff's right? A. No." ARGUMENTS OF THE MOTORIST - FAILURE TO TAKE SIMPLE PRECAUTIONS From the forgoing evidence of Mr Ashburne, accepted by Grove J, it was little wonder that his Honour accepted that the respondent at the trial proved negligence on the part of the appellants. Mr Ramsay had ample opportunity to see the respondent crossing the road. In the facts accepted by Grove, J, this was not a case of irrational behaviour or unexpected behaviour on the part of the respondent against which the motorist could not reasonably have been expected to take care: cf Stewart v, Carnell (1984) 2 MVR 147 (CA), 151. Mr Ramsay had between 50 and 75 metres in which to take action to avoid impact with the respondent. In this sense, he had a greater control of the situation than the respondent did. He could have slowed. Or he could have taken steps to move in evasive action to the left thereby passing the respondent without striking him. According to the evidence accepted by his Honour, Mr Ramsay had the full width of the road, on the left hand side of Fairford Road, in which to manoeuvre his vehicle assuming he had not earlier taken evasive action such as slowing or stopping to avoid the impact with the respondent. The question of the respondent's alleged contributory negligence has to be considered in the light of these findings which, as I have said are accepted by the appellants for the purpose of the appeal. It is true, as has been argued, that the attention of the Court must be concentrated on the steps which it was reasonable to expect the respondent to take. The more available and simple the measures for his own safety the more reasonable would it be for him to take them: cf Turner v State of New South Wales (1982) 42 ALR 669 (HC) at 670. What it is reasonable to expect of a person, such as a pedestrian in a position of the respondent must be considered in the light of all of the facts. The facts include the facts relevant to the conduct of the person in charge of a fast moving motor vehicle such as Mr Ramsay approaching the respondent. He was entitled to assume that such a person would act reasonably and with attention to safety. I did not consider that it has been shown that Grove, J erred in rejecting the appellant's defence of contributory negligence. The respondent, according to the evidence accepted by the trial judge, looked to the left and right before he embarked upon the crossing of the road. He did not run into the motor vehicle. Nor did he dart across the road. In this sense the case is quite different from many other cases in which it is found that a pedestrian has failed to take care for his own safety. Once Grove, J accepted the evidence of Mr Ashburne, and rejected the evidence of Mr Ramsay, it became almost inevitable that his Honour would conclude that Mr Ramsay had failed to take a proper look out and proper care for the safety of the respondent who was within his sights. It was equally certain, as it seems to me, that he would reject the defence of contributory negligence. The case which was advanced before us suggested, nevertheless, that contributory negligence was established in a number of respects. It was said that the respondent had failed to keep a proper look out. However, the evidence which his Honour accepted was that respondent looked from left to right and did not proceed to cross the road until he had done so. Then it was said that the respondent had "failed to hurry" across the road. However, the evidence indicates that he proceeded across the road in full sight of Mr Ramsay. The case which Mr Ramsay presented was that the respondent had 6 UNREPORTED JUDGMENTS rushed or darted cross the road. But this was rejected by the primary judge. He concluded that the respondent had proceeded at a reasonable pace. Next, it was said that the respondent had looked straight ahead and not taken care of his own safety by keeping a lookout for what Mr Ramsay might do. It is true that Mr Ashburne does not affirmatively state that the respondent looked again whilst he was crossing the road. But nor does his evidence deny that he did so. He simply left his testimony at the point that the respondent looked as he was setting out to cross the road. That evidence does not contradict his keeping a proper look out as he proceeded. It would not have been unreasonable for him, in the circumstances described by the evidence and accepted by the judge, to have assumed that a driver in the position of Mr Ramsay would have seen him and would have taken appropriate precautionary steps to avoid collision with him. Finally, it was said that, because Mr Ashburne saw a danger in turning his vehicle to the right, that fact indicated that a danger was equally presented to the respondent against which he should have taken like precautions. I do not find this argument convincing. CONCLUSION - NO ERROR - APPEAL DISMISSED It was properly conceded by the counsel that it was the duty of a driver of a motor vehicle in the position of Mr Ashburne, both under the common law and by the Motor Traffic Regulations, to halt before turning to his right in the path of an oncoming vehicle. Mr Ramsay's duty to the pedestrian was different from that which was owed by a pedestrian for his own safety: see Teubner v Humble (1963) 108 CLR 491, 504. I draw no inference from the fact that Mr Ashburne prudently stopped. Certainly that fact does not show that the pedestrian was careless in the continuous duty which he owed to be careful for his own safety in proceeding across the road. It would be erroneous to infer contributory negligence on the part of the respondent from proper caution and observance of the Regulations by Mr Ashburne. For all of these reasons I believe that it was open to Grove J to come to the conclusion which he did. Before us is an appeal. It is necessary for the appellants to establish error on the part of the primary judge. This is so although we are conducting the appeal by way of rehearing and although the appeal is being conducted on the footing of acceptance of the primary conclusions of Grove, J. This Court will not disturb such conclusion unless it is shown that the conclusions evidence error. In my opinion no error has been shown. The appeal against the orders and judgment which Grove J entered should be dismissed. The appellants must pay the respondent's cost. Mahoney JA I agree. Powell JA I also agree. KIRBY, P: Such are the orders of the Court. (Discussion ensued as to the costs of the cross appeal) The respondent has the leave of the Court to abandon the cross appeal. However, it is a condition of that leave that the respondent would be liable for the costs of the Appeal Book which related to issues other than the issue of liability. Appeal dismissed with costs. Counsel for the appellant: GR Petty Solicitors for the appellant: GM Meadows (Solr for GIO) URJ LAKEWOOD ELECTRICS PTY LTD and ANOR v CAMPANARO (Powell JA) 7 Counsel for the respondent: P Roberts Solicitors for the respondent: J Brady and Associates