Harper v Blake [1999] NSWCA 224

New South Wales Court of Appeal CITATION : Harper v Blake [1999] NSWCA 224 FILE NUMBER(S) : CA 40941/98 HEARING DATE(S) : 24/06/99 JUDGMENT DATE : 24 June 1999

PARTIES : Maria Therese Harper (Appellant) Wayne Christian Blake (Respondent) JUDGMENT OF : Stein JA at 1; Cole AJA at 12; Young J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC8104/97 LOWER COURT JUDICIAL OFFICER : Herron DCJ

COUNSEL : Appellant: M J Neill QC and K Pierce Respondent: C T Barry QC and J Davidson SOLICITORS : Appellant: Stewart Cuddy & Mockler Respondent: McClellands CATCHWORDS : Torts [95]- Motor vehicle- Motor vehicle accident- Pedestrian running towards car- Negligence- Contributory negligence Fehring v Direct Despatch Company [1962] QWN 26 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 CASES CITED: Schieb v Abbott (1998) 27 MVR 285 Stewart v Carnell (1984) 2 MVR 147 Stocks v Baldwin (1996) 24 MVR 416 DECISION : Appeal allowed

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40941/98 STEIN JA COLE AJA YOUNG AJA THURSDAY 24 JUNE 1999 MARIA THERESE HARPER V WAYNE CHRISTIAN BLAKE JUDGMENT 1 STEIN JA: I will ask Young AJA to deliver the first judgment. 2 YOUNG AJA : This is an appeal from his Honour Judge Herron of the District Court in a claim by the plaintiff respondent for personal injuries arising out of a motor vehicle accident at about midnight on 15 January 1994. The facts are not really in dispute. The plaintiff unfortunately was very badly injured and was not able to give any credible version of what had happened and the mainstay of the plaintiff's case was the evidence of the defendant's husband who was a passenger in her vehicle. 3 It is not necessary to recount the facts at great length. Essentially they were that at about midnight on 15 January 1994, the plaintiff and a girlfriend were waiting at a bus stop in Belmore Road, Mt Druitt. The girlfriend told the plaintiff that she wanted to end their relationship. The plaintiff said in effect that he would kill himself if she did so. The girlfriend told him not to be stupid. He moved to go out onto the road but the girlfriend physically held him back for a while. 4 The defendant appellant was working in the vicinity and her husband had brought the car to her place of work so that they could drive home. At the end of the defendant's shift she and her husband got into their car and she commenced driving home. That brought them along Belmore Road, Mt Druitt. The road goes around a slight bend after it passes the railway station and shortly after taking that bend, the husband saw what he described as 'a bit of a tiff' occurring at the side of the road. This incident would appear to be the girlfriend restraining the plaintiff from running onto the road. The husband told his wife that she had better slow down a bit and she slowed down from possibly thirty-five to forty kilometres per hour to about twenty-five to thirty kilometres per hour. As she approached, the plaintiff broke away from his girlfriend and ran, someone described it as very quickly, diagonally towards the defendant's car. He seems to have jumped, he missed the bonnet and hit the windscreen. At the same time the defendant moved to the right and slammed on her brakes and stopped within a car length. 5 The learned judge found that the defendant was partly responsible for the accident. He said that he favoured the submission of senior counsel for the plaintiff that the probabilities were that the plaintiff was intent upon impressing his girlfriend by running onto the roadway. At the last minute he attempted to avoid the collision by executing what one witness called a "Fosbury Flop" and jumping up so as to avoid the bonnet. The other possibility that was ventilated before his Honour was that the plaintiff was indeed trying to commit suicide as he had threatened. 6 The learned judge then considered the various authorities from the High Court and this Court that a motorist has a duty of care, not only to the careful pedestrian, but also to the careless and the drunken. (The cases considered were March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; Stocks v Baldwin (1996) 24 MVR 416 and Schieb v Abbott (1998) 27 MVR 285). There is no doubt that that is so, but one has to be careful about inflating decisions in that group of cases into some sort of general rule thereby overlooking the classic law which says that a defendant is only liable if he or she is negligent and that the standard by which one measures negligence is the standard of the reasonable man or woman. 7 It is always very easy to be wise after the event and to say that really the factors present should have made the average motorist anticipate that this sort of thing would happen, this motorist did not, ergo there is negligence. Care must always be taken to ask what is reasonable behaviour in the circumstances and to bear in mind the classic principles of negligence. This was done by the Full Court in Queensland many years ago in Fehring v Direct Despatch Company [1962] QWN 26 where the classic authorities are discussed in connection with the case of a drunken pedestrian moving between vehicles on a main road. 8 Mr Barry QC for the plaintiff and the respondent here says that he understands all those principles, but there is a duty to drunk and irrational pedestrians and he would say, deliberate show offs, though he fell short of saying people possibly committing suicide. He also acknowledged that there was a limit to which motorists needed to anticipate irrational behaviour by pedestrians: Stewart v Carnell (1984) 2 MVR 147, 151. Mr Barry QC says, however, that this is a special case because of the warning that was given to the defendant by her husband. He says there was a warning indicating the very thing that did happen might happen and a reasonable driver in all the circumstances would have heeded that warning and even stopped. I think, with great respect, that is over-simplistic. First of all, it equates the duty on a motorist beyond what is the legal standard. Secondly, it ignores the other factors that must have been present in this defendant's mind and in the mind of any reasonable driver, that is, that she was unsure what the pedestrian was going to do. At one stage, according to the evidence, and it is clear that the learned judge accepted all the evidence other than that of the plaintiff himself, she feared that her car was going to be invaded. She also would have had in mind possible traffic moving in the other direction and indeed, there was some evidence that a car did in fact come in the other direction about the time of the accident and she had to act with all these factors in her mind, in a split second. What she did do was move to the right and slam on her brakes in addition to the slowing of pace that had taken place when her husband had given the warning. Mr Barry QC did make the point on more than one occasion, as of course he should, that the learned judge had seen the witnesses and he had made a decision on the facts before him. However, it is clear that with the one exception, all the witnesses were accepted as witnesses of truth. There was no question of credit. The facts are virtually beyond dispute. It is unfortunately also clear that the learned judge applied too heavy a test and he seems to have inferred matters from the material which I must confess, I find difficult to infer. 9 In my view, it is clear from the whole of the facts, despite everything that Mr Barry QC has said, that the plaintiff was solely responsible for this accident and that the appeal should be allowed and there should be a verdict for the defendant. 10 STEIN JA: I agree with Young AJA and with the additional comments of Cole AJA, and wish to add only a few short remarks. The circumstances of the accident are highly unusual and regrettably resulted in the plaintiff sustaining very serious injuries. However, it seems to me that his Honour's approach was tantamount to imposing a duty close to absolute liability. The defendant's conduct, that is, in slowing down and swerving to the right onto the incorrect side of the road in attempting to avoid a collision with the pedestrian, was that of a reasonably prudent driver. Indeed, I think it was an entirely reasonable and proper reaction by the defendant. It is hardly likely that a driver would expect a pedestrian to leave the footpath and run flat out diagonally 25-30m towards the defendant's car and leap over the bonnet onto the windscreen. This comment takes into account the so called warning of the defendant's husband to her. Whether the plaintiff was attempting suicide or not does not, in my view, matter. There was, in my opinion, plainly no negligence by the defendant. 11 Accordingly, I agree with the orders proposed by Young AJA. 12 COLE AJA: I agree with the reasons for judgment given by Young AJA and I would add only the following. 13 Not only did the plaintiff respondent indicate to his girlfriend that he was going to kill himself, but he said to her that he would do so by running in front of a car. Having said that, he broke away from her and ran directly at the oncoming vehicle being driven by the appellant, thus apparently putting into practice what he had just indicated his intention was. None of that of course was known to the driver, the appellant. All she knew was that as she was driving along a street around midnight, her husband observed two persons at the kerbside some short distance away, and warned her that they may create a problem. She then slowed down to about twenty-five to thirty kilometres an hour. The person then ran from the roadside directly towards her, some twenty-five to thirty metres. She swerved to the right, braked heavily, but nonetheless could not avoid the respondent. To my mind, it is entirely plain that the totality of the fault in relation to this accident lies with the respondent. I can see no negligence on the part of the appellant at all. She did in fact stop within a car length of hitting the respondent. 14 I agree that the appeal should be upheld, with costs. 15 STEIN JA: Therefore, the appeal will be allowed with costs. The judgment on liability found in favour of the plaintiff will be set aside and a judgment and verdict for the defendant with costs be substituted.