SEERS v TURRELL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL COLE, BEAZLEY, and STEIN JJA 5 and 11 September 1997, 19 November 1997 [1997] NSWCA 279 Negligence — Driver and pedestrian — Failure to slow down — Failure to keep a proper lookout — Factual basis for finding of negligence — Contributory negligence — Potential of motor vehicle to cause a greater harm a relevant factor in assessment. This appeal arose from an accident which occurred on 8 November 1994 in which the plaintiff/respondent, a pedestrian, was crossing a road. There was a pedestrian refuge in the middle of the road. The respondent crossed one side of the road onto the refuge. No finding was made by the trial judge as to whether the respondent had stopped at the refuge, although she had given evidence that she did. A witness said that she did not. The respondent, as she quickly continued to cross the road, was struck by the defendant/appellant, who was driving her motor vehicle in a southerly direction. The trial judge found for the respondent, but assessed contributory negligence at 20 per cent. There were two central issues on appeal. The first concerned whether the trial judge had made the necessary findings of fact in order to determine the matters in issue. The second was whether the apportionment of contributory negligence was unreasonably low. HELD, dismissing the appeal with costs: (1) (per Beazley JA, Stein JA concurring, Cole JA dissenting) The trial judge made a determination on the basis that being aware (i) that the respondent was crossing the roadway, (ii) that there was a pedestrian refuge upon the roadway at the point where the respondent was crossing, and (iii) that the respondent had reached the refuge, at which point the appellant lost sight of the respondent, the appellant was negligent in failing to stop prior to the pedestrian refuge. This determination did not require a finding of any other facts to provide a proper basis for it. (2) (per Beazley JA, Stein JA concurring, Cole JA dissenting) While the trial judge's finding that the appellant should have stopped in anticipation of the respondent's continuation across the road imposes an unnecessarily cautious standard upon the appellant, his verdict may be supported on the basis that the appellant should have slowed down as she approached the refuge. Stocks v Baldwin (1996) 24 MVR 416; McLean v Tedman (1984) 155 CLR 306 considered. (3) (per Stein JA, Cole JA dissenting) The appellant failed to keep a proper lookout. (4) (per Beazley JA, Stein JA concurring) In assessing culpability of a driver and a pedestrian the fact that the motor vehicle can do much greater harm is a relevant factor to take into account. Talbot-Butt v Holloway (1990) 12 MVR 70 followed. (5) (per Beazley JA, Stein JA concurring) The apportionment of contributory negligence was in an appropriate discretionary range and ought not to be disturbed by the Court. Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 followed. (6) (per Cole JA, dissenting) There is a distinction between a pedestrian crossing and a pedestrian refuge. (7) (per Cole JA, dissenting) There was no basis upon which it could be found that any reduction in speed would have resulted in the avoidance of the accident. (8) (per Cole JA, dissenting) The accident was entirely the fault of the pedestrian. 2 UNREPORTED JUDGMENTS Cole JA The factual circumstances attending the accident the subject of this appeal, and the course of the appeal are addressed in the judgment of Beazley JA. Iam unable to agree with her Honour that the judgment of the trial judge can be sustained. The trial judge held: "On all of the evidence I am satisfied that a reasonably prudent driver, having been warned that there was a pedestrian refuge about to come, and knowing that it was there anyway, having travelled it many times and having sighted a pedestrian crossing Bexley Road, would have halted before the pedestrian refuge. This the driver did not do and it may have been that in her pulling out from the inside lane to the outside lane that she was concentrating on this rnanoeuvre rather than the pedestrian. I find that she failed to keep a proper lookout and the accident happened when she struck the plaintiff."! The reasons why that passage is, in my view, an erroneous application of law to fact are as follows: 1. There is a distinction between a pedestrian crossing and a pedestrian refuge. There is no statute or regulation which casts upon a driver approaching a pedestrian refuge, a duty to halt before the refuge and invite pedestrians standing on the refuge to cross the road. So far as I am aware, it has never previously been suggested that any such duty is imposed upon a driver by the common law. 2. There was no basis upon which it could be found that, short of stopping, any reduction in speed would have resulted in the avoidance of the accident. The appellant was driving in busy peak hour traffic in a dual stream on a major road at a speed of 40kms per hour. To my mind to suggest that, because a pedestrian is seen crossing the adjoining carriageway towards a pedestrian refuge where the pedestrian should wait until there is a gap in the traffic, that imposes upon the driver the duty to stop the peak hour traffic on a major road such as Bexley Road, so as to permit the pedestrian to cross, goes beyond any reasonable obligation upon the driver. Similar considerations apply to reducing speed to 20 or 10kms per hour so that the driver clogs the traffic against the off chance that the pedestrian may, foolishly, seek to walk quickly in front of the driver. 3. There was no evidence to support the finding that the appellant failed to keep a proper lookout. She observed the pedestrian crossing on the adjacent roadway. Her vision was then obscured by other traffic. Once the pedestrian came into sight she braked and managed to stop. There was nothing more she could have done. Although she struck the pedestrian she did not run over the pedestrian. 4. A driver in a dual stream of traffic at peak hour presented with a pedestrian who walks out quickly into vision can do nothing effective to avoid the accident. She was travelling at a modest speed in a continuous line of peak hour traffic keeping a proper lookout when the pedestrian, apparently ignoring her own safety, and abandoning the relative safety of the pedestrian refuge, sought to walk quickly through two lines of moving traffic. The accident was entirely the fault of the pedestrian. There is nothing in the evidence to suggest that the pedestrian gave any indication at all visible to the driver that she intended to walk out into the moving traffic. The prospect of a pedestrian taking such a conscious foolhardy course is so remote that a driver is entitled to consider that prospect as minimal. In the real world, the alternative is to construct a rule that peak hour traffic in a four lane highway is obliged to stop because there is a pedestrian on the footpath or standing on a pedestrian refuge in the centre of the roadway. I can see no basis for constructing such a rule. 1. Appeal Book, p276. URJ SEERS v TURRELL (Beazley JA) 3 I agree with the statements of principle referred to by Beazley JA, but not with the application of those principles to the circumstances in this case. Il In my opinion the appeal should be upheld, the judgment set aside and there be entered a verdict for the appellant defendant. The respondent should pay the appellant's costs of the trial below and of the appeal but should have, if qualified, a certificate under the Suitors Fund Act. Beazley JA This is a defendant's appeal against a verdict in favour of the plaintiff/respondent and against the trial judge's apportionment of contributory negligence in relation to a claim for damages for injuries sustained by the plaintiff in a motor vehicle accident. Background Facts At about 6pm on 8 November 1994 the respondent was crossing Bexley Road at Kingsgrove from west to east. There were two lanes of traffic in each direction. There was a pedestrian refuge in the middle of the road of which the appellant was aware. There was also a sign warning her of the refuge some distance beforehand, which the appellant had seen on previous occasions and also observed on the day of the accident. The traffic was heavy at the time. On the western side of the road (that is, the northbound lane) the traffic had stopped. The traffic in the lane closest to the centre line, had either stopped or was moving slowly. Just past the pedestrian refuge, there was a right turn lane which was filled with traffic and traffic was banked back past the pedestrian refuge. To the north of the pedestrian refuge and some distance back from it, there was a parked truck or trucks. The appellant was travelling in a southerly direction. Initially she was in the kerbside lane but moved into the centre lane to avoid the blockage in the kerbside lane due to the presence of the parked trucks. She remained in the centre lane for some distance and then moved back into the kerbside lane. The appellant gave evidence that she first saw the respondent at the time she moved back into the kerbside lane, and had her in her vision until she reached the pedestrian refuge where she lost sight of her. His Honour found that the respondent walked quickly from the western side of the roadway. His Honour made no finding as to whether she stopped at the pedestrian refuge. Her own evidence was that she did. An eyewitness said that she did not. The trial judge then found that the appellant had the respondent in her vision until the respondent reached the pedestrian refuge where the appellant then lost sight of her. His Honour accepted that the next thing the appellant observed was when the respondent appeared between the halted or slowly moving cars in the lane nearest the median strip of the eastern lane. The appellant thought the respondent ran out, describing what she saw as a blur as the respondent came into the kerbside lane, where she struck the appellant. A witness to the accident said that the respondent was walking quickly. The respondent said she walked quickly at all times. The trial judge accepted the respondent's evidence that she was walking quickly and not running. During the course of the appellant's submissions, the question arose whether the trial judge had made the necessary findings of fact to enable him to determine the matters in issue - namely whether the appellant or the respondent had been negligent in failing to keep a proper lookout and whether the respondent had been contributorily negligent. A failure to make such findings constitutes appealable 4 UNREPORTED JUDGMENTS error: Pettitt v Dunkley [1971] 1 NSWLR 376 at 382; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259. However, there was no ground of appeal raising this issue. The appellant sought leave to amend the notice of grounds of appeal so as to allege that the trial judge had failed to make findings of fact upon the contested issues in the case. The respondent opposed the amendment. However, as the matter had been raised by the Court because of its concern with certain aspects of the judgment, the appellant was granted leave to amend, and the matter was adjourned to allow both parties to bring in written submissions in respect of the amended ground of appeal. The Court also heard short oral submissions on the issue. Counsel for the appellant raised thirteen matters upon which the trial judge failed to make findings. In addition, he submitted that the trial judge was in error in failing to make a finding as to the respondent's credit when credit was in issue, and failed to make a finding as to whether he preferred the version of the accident given by the respondent to the police or that given in her evidence. The question of whether his Honour erred in failing to make essential findings of fact has to be determined in the context of his finding that: "On all of the evidence I am satisfied that a reasonably prudent driver, having been warned that there was a pedestrian refuge about to come, and knowing that it was there anyway, having travelled it many times and having sighted a pedestrian crossing in Bexley Road would have halted before the pedestrian refuge. This the driver did not do (and thereby) failed to keep a proper lookout." (Emphasis added.) Of the thirteen alleged omissions, it is only in respect of three about which it might be argued that it was essential or critical to make findings of fact. They are: (i) whether the respondent had stopped at the refuge or whether she had proceeded without halting from the western side to the eastern side; (ii) where the respondent was when she was hit; and (iii) what part of the appellant's car struck her. Counsel for the respondent submitted that having regard to the way his Honour approached his determination, it was not necessary that he make findings on these matters. He submitted that a proper analysis of his Honour's judgment revealed that his Honour determined the case on the basis that being aware (i) that the respondent was crossing the roadway, (ii) that there was a pedestrian refuge upon the roadway at the point where the respondent was crossing, and (iii) that the respondent had reached the refuge, at which point the appellant lost sight of the respondent, the appellant was negligent in failing to stop prior to the pedestrian refuge. A determination so reached did not require a finding of any other facts to provide a proper basis for his Honour's determination. In my opinion, the respondent's submission is correct. True it is that his Honour's failure to make the findings to which I have referred provides but a scant picture of how this accident occurred. However, his Honour's approach to the case did not require a finding on these issues. He considered one issue only. Given the known presence of the respondent upon the roadway at a place where the appellant knew there was a pedestrian refuge, should she have stopped so as to avoid an accident in case the respondent proceeded straight through the refuge without stopping, or, having stopped at the refuge, moved out of it to continue her journey across the road. His Honour was satisfied that a reasonably prudent driver having been warned that there was a pedestrian refuge, and I should add being aware that there was a refuge in the traffic conditions ahead, and having URJ SEERS v TURRELL (Stein JA) 5 sighted a pedestrian crossing from the western side of the road, would have halted before the pedestrian refuge. The driver did not do so and thus failed to keep a proper lookout. Although his Honour did not refer to any authority to support his decision, the duty on a driver of a motor vehicle in relation to other users of the road has been the subject the frequent judicial comment. The issue was dealt with by this Court in Stocks v Baldwin (1996) 24 MVR 416, where Mahoney P referred to well established authority that it is foreseeable that a person may step suddenly from behind a parked van or other obstruction into the path of an oncoming vehicle. His Honour then stated at 418: "The reasonable person would accept that it is not the duty of a driver so to drive that there is no foreseeable risk of injury to others. To think otherwise would be to ignore the realities of city life. But it is not to be taken from what I have said that risks may be ignored. In the 'balancing process'... at least four things are to be borne in mind: the extent of the damage that may be done by a driver to a pedestrian; the degree of likelihood that a pedestrian will suddenly come into the path of an oncoming vehicle; the consequent extent of the precautions which a driver must take against that eventuality; and the extent of what a driver is able to do when confronted with such a danger". This statement is no more than a particular application of the general principle that "[t]he standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others": McLean v Tedman (1984) 155 CLR 306 at 311. The same standard applies to the reasonable woman. Whilst his Honour's finding that the appellant should have stopped in anticipation of the respondent's continuation of her journey across the road imposes an unnecessarily cautious standard upon the appellant, his verdict may be supported on the basis that the appellant should have slowed down as she approached the refuge. His Honour found that the respondent was 20 per cent contributorily negligent. This apportionment is challenged by the appellant on the basis that is was unreasonably low. An appellate court will not lightly interfere with a trial judge's finding on apportionment: see Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 at 532-3. The authorities have consistently held that in determining the culpability of a driver and a pedestrian the fact that the motor vehicle can do much greater harm is a relevant factor to take into account. In Talbot-Butt v Holloway (1990) 12 MVR 70 Handley JA said at 88: "The evaluation and assessment of the culpability of the plaintiff and defendant must take proper account of the fact that... the plaintiff's conduct posed no danger to anyone but herself while the defendant who was driving the [vehicle]... was in charge of a machine that was capable of doing great damage to any human being who got in its way. This factor has been emphasised by the High Court in Pennington v Norris (1956) 96 CLR 10 at 16; Karamilis v Commr of South Australian Railways (1977) 15 ALR 629 at 635; Cocks v Sheppard (1979) 25 ALR 325". In my opinion, His Honour's apportionment was within an appropriate discretionary range and ought not to be disturbed by this Court. Accordingly, I consider that the appeal should be dismissed with costs. Stein JA I have had the benefit of reading in draft the judgments of Cole and Beazley JJA. I agree that there are unsatisfactory aspects of the findings of the trial judge, or rather the absence of what may be considered to be important 6 UNREPORTED JUDGMENTS findings. Nonetheless, inherent in the decision is his acceptance of the respondent's version of how the accident occurred. The respondent, a woman aged in her 70's, had crossed one side of Bexley Road onto a pedestrian refuge or island located in the middle of the carriageway. Although no finding was made by his Honour as to whether she stopped at the refuge, her evidence was that she did. The respondent then continued to walk quickly (not run) across the two eastern lanes. She reached some point in the lane closest to the pedestrian island when she was struck by the appellant driving her motor vehicle in a generally southerly direction. The appellant had the respondent in her view as she crossed the western side of the roadway to the pedestrian refuge in the middle of the road. She then lost sight of her. It is unclear why she lost sight of her - whether this was caused by other traffic obstructing her vision or that she was not looking towards the refuge. However, it seems to me that it was implicit in his Honour's findings that he accepted the respondent's evidence that she stopped at the refuge and then proceeded to walk quickly into the eastern lane. No specific finding was made as to the point of impact between the appellant's vehicle and the respondent. It is apparent that it was the front of the vehicle, but which part is unclear. What is obvious, however, is that the respondent did not get very far across the lane before being struck. The question is whether, on the facts recounted above, the appellant was negligent in not stopping so as to avoid an accident in case the respondent stepped off the pedestrian refuge. In my opinion, a reasonably prudent driver, having seen the respondent cross from the opposite side of the road to the refuge, and then having lost sight of her, should have slowed down before the refuge so as to be able to stop in an emergency. The appellant was aware of the refuge and of the traffic conditions up ahead of her. In my opinion, the appellant failed to keep a proper lookout. I agree with Beazley JA that the appellant was negligent. I also agree with Beazley JA's conclusion on contributory negligence. The apportionment was within the discretionary range available to the trial judge. The appeal should be dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: D J Russell Solicitors for the appellant: B Ramrakha Counsel for the respondent: A S Morrison SC/W B Nicholson Solicitor for the respondent: Peter Erman