New South Wales Court of Appeal CITATION : Dennis v Keep [2002] NSWCA 227 FILE NUMBER(S) : CA 40937/01 HEARING DATE(S) : 11/07/2002 JUDGMENT DATE : 11 July 2002 PARTIES : Marcia Donna DENNIS v Michael James KEEP JUDGMENT OF : Heydon JA at 22&24; Foster AJA at 1-21; Bergin J at 23 LOWER COURT JURISDICTION : District Court LOWER COURT 40/2000 FILE NUMBER(S) : LOWER COURT Puckeridge J JUDICIAL OFFICER : COUNSEL : J.T. Kearney - Claimant R.C. Tonner - Opponent SOLICITORS : McIntosh McPhillamy & Co - Claimant Moray & Agnew - Opponent CATCHWORDS : Appeal for damages for injuries, disabilities and consequential losses occasioned by the motor vehicle accident. CASES CITED: Derrick v Cheung (2001) High Court of Australia, unreported. DECISION : 1. Leave to appeal granted.; 2. Appeal dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40937/01 DC 40/00 HEYDON JA FOSTER AJA BERGIN J THURSDAY 11 JULY 2002 MARCIA DONNA DENNIS v MICHAEL JAMES KEEP JUDGMENT 1 FOSTER AJA: This is an application for leave to appeal from a decision of Puckeridge DCJ given in the District Court of Bathurst on 30 October 2001. If leave be granted the hearing of the application is to be treated as the hearing of the appeal. 2 His Honour had for hearing a claim by the present claimant ("Ms Dennis") for damages for injuries, disabilities and consequential losses occasioned by her being struck, whilst a pedestrian by a motor vehicle driven by the opponent ("Mr Keep"). The accident occurred on 28 April 1999 just south of the intersection of Bentinck and Russell Streets Bathurst at about 8.45pm. The claimant had no recollection of the accident. The opponent was not present at the hearing and gave no oral evidence, it being accepted that he was on military service in Timor. A statement made by him to the police and also a statement by him to an assessor in which he described the accident were tendered in evidence. 3 There was evidence from the police officer, Constable Bloomfield, who attended the scene. He provided a rough sketch plan, which was before his Honour and is before us. There were also comprehensive photographs of the scene and of the damage to the opponent's vehicle. The photographs showed, also, the intersecting roads. Those photographs have also been before this Court. 4 There was also evidence from an eye witness Mr Hargraves to which I will make reference later in these reasons. The evidence did not satisfy his Honour that the opponent had caused the accident by negligent driving of his motor vehicle. Accordingly he entered judgment in favour of the opponent. The appeal, of course, seeks a reversal of that finding and of that judgment. 5 The following facts were clearly established in evidence. Bentinck Street, Bathurst, runs roughly north and south, it is a main street but at the time of the accident carried little traffic. Russell Street is a lesser street, it runs east and west. At the intersection of those streets there was a roundabout. The photographs show that it is an obviously visible construction of the usual kind. It had Give-way signs at each entrance to it in both streets. Also at each entrance there was a triangular shaped traffic island, with the apex of the triangle facing away from the circular centre of the roundabout. Those triangular islands were situated in the centre of each street. 6 These, had as the photographs show, partially scalloped surfaces which enabled easier pedestrian access across them, and also provided an area in which pedestrians could stand and wait until it was safe to cross the road in front of them. There were no associated pedestrian crossings in this area. 7 There was a standard light pole in the centre of the roundabout and there were standard lights at each corner of the intersection. The evidence indicates that, notwithstanding these lights, the area to the south of the roundabout, where the accident occurred, was somewhat poorly lit. On the south-east corner of the intersection was a hotel of which Mr Hargraves was the publican. At the time of the accident he was standing near its doorway on a ground floor verandah area from which he could observe the intersection, and had a view west into Russell Street and north into Bentinck Street. His evidence was obviously most important in the case. 8 His Honour accepted Mr Hargraves' evidence, which he summarised in his judgment in the following way: Having stated that he was the publican his Honour continued:- "At the time he was standing on the verandah in the position indicated in photograph H of exhibit B. The time in question was approximately 8.45pm. He stated that the area was lit as shown in the photographs and there was lighting provided but the area on the western side of Bentinck opposite from the hotel he described as "dark". He said, however, that he was able to observe the plaintiff crossing Bentinck Street in the direction indicated in photo D of Exhibit B. He saw the plaintiff was walking across towards the hotel. He also observed a car coming to the intersection which he stated he observed when the car was approximately 100 yards down the road. He stated that he saw headlights on a vehicle approximately 100 yards down the road. He stated that he also saw that the plaintiff kept walking over towards the hotel. He said he sang out two or three times to the plaintiff the words:- "Stop Marcia, there's a car coming." He indicated that he had earlier served the plaintiff at the Family Hotel and had refused to serve the plaintiff with any more alcohol some half an hour or 40 minutes prior to observing the plaintiff crossing the road. He then saw the plaintiff take one to two steps from the scalloped portion of the triangular concrete structure as depicted in photograph D of Exhibit B. The plaintiff was struck by the defendant's vehicle. In evidence before the Court Mr Hargraves indicated that he observed that the plaintiff was thrown up into the air for some height and then landed on the ground in Bentinck Street". 9 It was established by other evidence in the case that the appellant had a significant blood alcohol level of 0.230 at the time of this unfortunate accident. 10 Evidence given by Mr Hargraves indicated that he anticipated the collision. He yelled a warning more than once but the plaintiff kept on walking slowly towards him. She was wearing dark clothes. He considered that she walked in front of the car. He agreed in evidence that once she stepped off the median area it was obvious there was going to be an impact. He does not suggest that there was anything at all unusual in the claimant's mode of walking. 11 Mr Keep in his statement to the police indicated that he was driving south in Bentinck Street, he said:- "I reached the roundabout at the intersection with Russell Street. I had changed down to second gear. I didn't have any other vehicles to give way to and I drove on the roundabout, I was doing about 35 km/h. I drove through the intersection to continue up Bentinck Street. Half way around the roundabout I had seen a Pedestrian moving towards the Give Way sign island in front of the Hotel in Bentinck Street. As I came off the Roundabout the Pedestrian ran out in front of me from the Island on my right. I braked and swerved left to avoid the Pedestrian but she just kept running from my right to left. She ran into the front driver's side of the car just back from the corner of the car. The Pedestrian fell across the bonnet, slid up and struck the windshield and fell back on to the road off the driver's side. I stopped my car and went to help the Pedestrian". 12 His Honour in his judgment considered, in effect, that, in the circumstances, Mr Keep was under a misapprehension as to the plaintiff's running from the refuge area at the time when she came in front of his vehicle, the circumstances being such that an error of that kind was likely. Mr Keep also provided information to the Constable which would establish that he was probably signalling his intention with his indicator light to leave the roundabout at its southern exit. He was able to bring his vehicle to a halt within 10 metres of the point of impact. There were no skid marks. There was damage to the driver's side front of the car as demonstrated in the photograph. 13 Investigations by Constable Bloomfield at the accident scene did not suggest any inaccuracies in the opponent's or in Mr Hargraves' version of the facts. The applicable speed limit was 60 km/h. Accordingly Mr Keep was driving well within it, whilst in the roundabout and at the time of the impact. 14 His Honour considered submissions on behalf of the claimant, which submissions have been repeated here, that Mr Keep in conformity with his duty of care should have driven his vehicle at a speed that would have enabled him to stop before hitting the plaintiff and should not have assumed that the plaintiff, whom he had seen crossing towards the centre island, would stop in its scalloped section rather than move out in front of him. However his Honour accepted that there was nothing about the appellant's manner of walking which would suggest that she was other than in control of her movements, and was aware of the approach of his vehicle in the roundabout. There was nothing to indicate that she was in fact intoxicated as she was. 15 His Honour stated his primary conclusions in the matter as follows:- "I have come to the conclusion on the evidence before the Court that there was nothing untoward in the movement of the plaintiff towards the give-way sign island as shown in photograph D of exhibit B which would have alerted the defendant for the need to bring his vehicle to a halt. I consider that it was not unreasonable in the circumstances for the defendant to assume that the plaintiff would have stopped in the give-way sign island. The duty of care as owed by the defendant to the plaintiff was a duty to take reasonable care in all the circumstances and on the evidence before this Court I am not satisfied that the defendant failed to take reasonable care in all the circumstances in failing to ensure that the plaintiff's stay in the give-way sign island before the vehicle driven by the defendant continued in a southerly direction in Bentinck Street". 16 He also said: "The degree of intoxication of the plaintiff was such that she failed to see the defendant's vehicle and the cause of the injuries which she sustained was as a result of her failure to take a proper lookout for her own safety in all the circumstances which failure the Court would consider is due to the degree of her intoxication at the time". 17 He was also satisfied that Mr Keep had not failed in the circumstances to keep a proper look out. 18 The Court, in a carefully presented argument by Mr Kearney, has been referred to several decided cases relating to collisions between motor vehicles and pedestrians. However I am unable to detect in them any unifying principle which would require that his Honour decide this case other than he did. Indeed in the recent decision of the High Court in Derrick v Cheung (2001), High Court Appeal 48, it is indicated, in my view, that, in cases of this kind, a common sense overall appraisal of the situation confronting a motorist, travelling within the appropriate speed limits, when a pedestrian enters his or her line of travel, is required, rather than an over-meticulous evaluation of what might have occurred if he or she had been driving at a lesser speed. 19 The Court said:- "Few occurrences in human affairs in retrospect can be said to have been, in absolute terms, inevitable. Different conduct on the part of those involved in them almost always would have produced a different result. But the possibility of a different result is not the issue and does not represent the proper test for negligence. The test remains whether the plaintiff has proved that the defendant who owed a duty of care has not acted in accordance with reasonable care". 20 In his carefully prepared and cogently presented argument Mr Kearney has referred to the possibility of the opponent in these proceedings taking some additional steps such as blowing his horn or flashing his headlights. As a matter of causation I would not be satisfied that had those precautions been taken, they would reasonably have had any effect, having regard to the condition in which the claimant was. However I do not consider, having regard to the reasonable ambit of the duty of care in this situation, that those precautions were called for. There was nothing, as his Honour emphasised at the trial, to indicate that the claimant was doing other than crossing in a normal way towards the pedestrian refuge in the centre of the road where it was, in my view, in every respect reasonable for the driver to assume that she would remain. I think his Honour was, in the state of the evidence, quite entitled to find that the driver did, in fact, make such an assumption. 21 In the circumstances I am satisfied that his Honour was correct in holding that the accident was not attributable to any want of reasonable care on the part of the opponent, in the circumstances I propose that leave be granted but that the appeal be dismissed with costs. 22 HEYDON JA: I agree. 23 BERGIN J: I agree. 24 HEYDON JA: The order will be as proposed by Mr Justice Foster. ********************* 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.