Freeman v Sherwood [1999] NSWCA 172

New South Wales Court of Appeal CITATION : Freeman v Sherwood [1999] NSWCA 172 FILE NUMBER(S) : CA 40651/97 HEARING DATE(S) : 5 March 1999 JUDGMENT DATE : 5 March 1999

PARTIES : Jacqeline Ruth Freeman v John Sherwood JUDGMENT OF : Priestley JA at 9; Meagher JA at 1; Handley JA at 10

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : DC 4384/96 LOWER COURT JUDICIAL OFFICER : Mill ADCJ

COUNSEL : Appellant: L.M. Morris QC/T J Clarke Respondent: G.M. Watson SOLICITORS : Appellant: Keddies Respondent: Sparke Helmore. CATCHWORDS : Negligence - motor vehicle accident - damages - no breach of duty - no error by trial judge. DECISION : Appeal dismissed with costs.

- 3 - THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

40651/97

PRIESTLEY JA MEAGHER JA HANDLEY JA

Friday, 5 March 1999 JACQUELINE RUTH FREEMAN v JOHN SHERWOOD JUDGMENT

1 MEAGHER JA: This is an appeal by an unsuccessful plaintiff against a judgment of Acting District Court Judge Mill in which the appellant sought damages for injuries suffered by her in a motor vehicle accident. She was attempting to cross on foot Pittwater Road at Warringah from west to east. At that stage Pittwater Road has six lanes, which can be called lanes one, two, three, which are going north, four, five, six, going south. 2 She was in a hurry to catch a bus. She went from the western boundary of Pittwater Road, she walked to the central median strip, which is quite large, stayed there for quite some time and walked some distance towards the south, and then decided to cross over to the eastern side. The process of crossing meant that she had to walk or, as she said, jog between two lines of parked cars in lanes four and five. She did not worry about what was happening in lane six, and in fact she walked right in front of the defendant's car, which she had not noticed. 3 The defendant's passage was as follows. He came out from Cross Street, began going from west to east, turned right into lane five, and he proceeded in a southerly direction in lane five until the traffic conditions made it possible for him to go into lane six, which he then did. In due course the traffic lights, which were a short distance to the south of the point of impact, went red, and the traffic in lanes four and five slowly stopped. A green arrow emerged as far as lane six was concerned, and the traffic continued to proceed in that lane. He did not notice the plaintiff until she emerged immediately in front of his car. 4 In those circumstances, her Honour found that the plaintiff had not made a case of negligence, that when the defendant first saw the plaintiff there was literally nothing he could do to stop an impact. 5 Mr Morris, learned Senior Counsel for the appellant plaintiff, conceded in effect that may be her Honour's finding was correct, there was nothing the defendant could do once the plaintiff emerged in front of his car, but submitted with some force that he could have, acting reasonably, have observed her when she was on the median strip from the moment he turned right to go into lane five, or possibly a short time thereafter. 6 I do not see that this argument compels acceptance. After all, it is difficult from the known facts to work out exactly where he, the defendant, was when the plaintiff was on the median strip. In any event, the defendant had other things to do than look at pedestrians who are on the median strip. He had to have some regard to what pedestrians on the footpath on the eastern side of the highway were doing, and, more particularly, had to have regard to what the traffic was doing in front of him. He was proceeding in lane five until it was clear for him to go in lane six, and he then went into lane six. That would require a considerable deal of concentration on what the traffic was doing. 7 Moreover, it is not clear that even if he were looking at the median strip, he necessarily would have seen her in the traffic conditions as they stood. Certainly he conceded that, in general, from the point at which he joined lane five, he could see people on the median strip. What is not clear is whether he could have seen pedestrians when there was intervening traffic. Even if he did see her at that point, it is far from clear, to my mind, that he could reasonably have expected her to cross from the median strip to lane six. In particular, it is far from clear that he should reasonably have anticipated the possibility that she would suddenly emerge into lane six from between two parked motor cars. 8 In those circumstances, I can see nothing wrong with her Honour's finding that the plaintiff had failed to make out a case of negligence. In my view therefore the appeal should be dismissed with costs. 9 PRIESTLEY JA: I agree. 10 HANDLEY JA: I also agree. 11 PRIESTLEY JA: The appeal is dismissed with costs.