Reported Decision : (2000) 31 MVR 120 New South Wales Court of Appeal CITATION : Brennan v Baker [2000] NSWCA 91 FILE NUMBER(S) : CA 40549/98 HEARING DATE(S) : 28/3/00 JUDGMENT DATE : 28 March 2000 PARTIES : Darrin Brennan v Maureen Elizabeth Baker JUDGMENT OF : Priestley JA at 1; Sheller JA at 17; Stein JA at 18 LOWER COURT JURISDICTION : District Court LOWER COURT DC 6333/97 FILE NUMBER(S) : LOWER COURT His Honour Judge Garling JUDICIAL OFFICER : COUNSEL : Appellant - S. Norton Respondent - G.M. Watson SOLICITORS : Appellant - Brydens Respondent - Hunt & Hunt CATCHWORDS : Motor vehicle accident - liability DECISION : Appeal dismissed with costs. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40649/98 DC 6333/97 PRIESTLEY JA SHELLER JA STEIN JA Tuesday, 28 March 2000 BRENNAN v BAKER 1 PRIESTLEY JA: The appellant in this case is a man who was knocked down by a car on the Camden Bypass at about 9pm on 8 July 1995. He was then twenty-four years of age. He lived in the area and had been drinking for most of the day at a nearby hotel. 2 About fifty-five minutes after the accident a blood sample was taken, which showed a blood alcohol concentration of 0.181g per 100ml. He suffered injuries that have had some lasting effects. He claimed damages from the driver of the car. 3 Judge Garling in the District Court held he had not proved the driver was negligent and dismissed his claim. He has appealed to this Court. 4 The appellant had no memory of the accident. There was no direct evidence of how he came to be on the bypass or where he was going. Photographs and other evidence describing the bypass show it to be a four-lane highway divided by a grassy median strip with grass and scattered trees on either side. At the point where the accident happened the road passes through mainly undeveloped land on one side, but goes close on the other to some houses on the outskirts of Elderslie, a suburb of Camden. There was no street lighting. The speed limit was 100 kilometres per hour. 5 The respondent, the driver of the car, made a statement to the police immediately after the accident, the substance of which she gave in evidence before Judge Garling. She was cross-examined closely about her account, the object of the cross-examiner being to obtain answers supporting the appellant's case that the respondent could not have been keeping a proper lookout. 6 The following answer from her cross-examination puts in short form what she had been saying right from the time of the accident: " I can honestly sit here and say I was fully alert. I was looking ahead of me. It was a dark night and he appeared in front of me immediately. At no time whatsoever - I was fully alert, I did not sight the young man. I did not pick him up in my lights, not anything. I was fully alert. I had nothing to drink. I was not tired and I have no idea where he came from. He just appeared. " 7 The respondent's husband was a passenger in the car. His evidence was to the same effect as his wife's. They both said that the car's speed at the time of the accident was in the area of seventy-five kilometres per hour. They were travelling south in the lane closest to the median strip. The trial Judge clearly accepted their evidence. He said the respondent was "a good witness", and that the husband was a "good witness". 8 The case for the appellant at the trial was that there was an uninterrupted view ahead of the driver for a considerable distance back from the point of impact and that she must have seen the appellant well before he got into the path of the car if she had been keeping a proper lookout. The fact that she did not see him showed that she was not keeping a proper lookout and was therefore negligent. 9 This is substantially the same argument as has been put to this Court today. It is submitted that the trial Judge was wrong to reject it. However, I do not see any mistake in the trial Judge's reasons. He said that on the evidence before him he could not say how the appellant had come to be in the path of the car. He accepted the evidence of the respondent and her husband. The respondent had said it was a dark night. The road was unlit. The respondent said she was looking ahead. The trial Judge was of the view upon the evidence before him that the appellant had not established negligence by the respondent driver. 10 In seeking to support today the argument that the respondent could not have been keeping a proper lookout, submissions were made for the appellant about the nature of the bypass and it was submitted that the physical evidence and the evidence from the appellant himself about his use of the bypass all showed that this was not a highway that could be treated as a remote country highway. It was one where the possibility of pedestrians being on it was such as to impose a duty of carefulness upon the respondent, which she had not discharged simply by keeping a lookout ahead of her as she travelled along the highway. 11 The trial Judge dealt with this argument also. He gave his own description of the nature of the road, particularly in the area on either side of the point of impact, which in my opinion was an accurate summary of the evidence before him and justified his comment that the situation was different from one where a driver was travelling in the City of Sydney. He said: " Where one is driving out in the country on a bush road then one does not expect pedestrians to be crossing the road, although a driver has to keep a proper lookout. The driver would not have to keep the same lookout that a driver would have to keep in the City of Sydney. " 12 He then went on to say that the situation in the case before him fell between what it is in the City of Sydney and on a country bush road. He said: " This case falls in between that. This is an area where the speed limit is 100 kilometres per hour, where no doubt pedestrians cross from time to time, but there is an area with banks, certainly on one side, which would indicate it would be unlikely for pedestrians to cross in this area. So what the defendant driver would have been looking for was somehow different to what one would have expected the defendant driver to be looking for, for example if they were travelling in the City of Sydney. " 13 Then he said: " I accept that the appellant was entitled to cross this road and that the defendant driver has a duty to watch for pedestrians even in areas such as this. " 14 So he was fully aware both of the conditions in which the accident happened and of the duty of the driver but, nevertheless, on the evidence before him he was not able to find any basis for finding that the respondent was negligent. 15 Really, his acceptance of the evidence of the respondent and her husband, and particularly of her evidence that she was keeping a lookout, was a decisive finding and one which was open to him in view of the time of night, the darkness of the night, and the road's being unlit at the point of the accident. 16 In my opinion, there is no basis upon which this Court could say that the trial Judge should have come to any other conclusion and, unfortunate though it is for the appellant, the result is that the appeal should be dismissed with costs. 17 SHELLER JA: I agree. 18 STEIN JA: I also agree. 19 PRIESTLEY JA: The Court therefore orders that the appeal be dismissed with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.