MA v KEANE [2003] NSWCA 50

New South Wales Court of Appeal

CITATION : MA v KEANE [2003] NSWCA 50 HEARING DATE(S) : 7 March 2003 JUDGMENT DATE : 7 March 2003

JUDGMENT OF : Sheller JA at 1; Santow JA at 30; Gzell J at 36 DECISION : Appeal dismissed with costs.

CATCHWORDS : Negligence - Pedestrians - Running down - Carelessness of pedestrian - Where pedestrian stopped, looked at car and continued to cross LEGISLATION CITED : N/A Albert v The Nominal Defendant (1999) 29 MVR 107 Cotton v Commission for Road Transport and Tramways (1942) 43 SR (NSW) 66 CASES CITED : Derrick v Cheung (2001) 181 ALR 301 Stocks v Baldwin (1966) 24 MVR 416 Schieb v Abbott (1998) 27 MVR 285 PARTIES : Xiu Lan Ma - Appellant Tracey Amanda Keane - Respondent FILE NUMBER(S) : CA 40174/02 COUNSEL : A D M Hewitt SC/C Stewart - Appellant J D Hislop SC/K J Pierce - Respondent SOLICITORS : Keddies - Appellant Thomas Laycock - Respondent

LOWER COURT District Court JURISDICTION : LOWER COURT 8390/00 FILE NUMBER(S) : LOWER COURT Garling DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40174/02 DC 8390/00

SHELLER JA SANTOW JA GZELL AJA

Friday, 7 March 2003 MA v KEANE Judgment 1 SHELLER JA: The plaintiff Xiu Lan Ma, a pedestrian, was injured when knocked down by a car driven by the defendant, Tracey Amanda Keane, in Harris Street, St Marys on 16 September 1999. The plaintiff was crossing Harris Street from north to south and had passed the centre line of the street when hit by the defendant's vehicle which was travelling in a westerly direction having turned left out of Glossop Street. 2 The proceedings were heard by his Honour Judge Garling who, on 22 February 2002, gave judgment on liability, finding that the defendant had acted reasonably at all times and that there was no negligence. His Honour entered a verdict for the defendant. The plaintiff now appeals from that decision. 3 In his reasons for judgment, Judge Garling summarised the evidence of the plaintiff, the defendant and two witnesses, Mr Southward and Mr Coyle, who were the defendant's passengers at the time. 4 The trial Judge concluded that there was no significant difference between the plaintiff's version of what occurred and the defendant's version. He stated his findings of what happened as follows: "The plaintiff on 16 September 1999 at about 8.15 p.m. walked across Harris Street, St Marys. I am unsure of what speed and it does not matter. I do not believe it matters whether she walked slightly diagonally or straight. I accept she looked before she stepped off, I accept she did not see any vehicle, I accept that she walked across and she stopped just short of the centre line. I accept she turned to her left. She looked to her left, I accept she looked straight at the defendant's vehicle. I find that having stopped and having looked and when the vehicle was approximately ten metres from her she walked at least on to the second side of the road that she walked somewhere in the vicinity of one metre. She was then struck on the right hand front corner of the defendant's vehicle near the headlight. I am satisfied that the defendant as soon as she noticed the plaintiff move from her stationary position braked and to some extent swerved to the left. I am satisfied that the plaintiff fell to the ground and was injured." 5 Earlier the trial Judge referred to the defendant's evidence that before the accident she was driving along Harris Street at a speed of about forty kilometres per hour. According to the trial Judge, the defendant said that she saw somebody over the other side of the road cross to the middle of the road, stop, look at me and then keep going. The woman paused and looked towards the car, she was to the right of the car. When the plaintiff was 10 to 15 metres away she started to move. She moved about one metre or less, like a run or a quickening of steps or walking really fast. The defendant said that she veered a bit and hit the brakes. The plaintiff collided with the front right hand portion of the car near the headlight. 6 Mr Southward also said that the car before the collision was travelling at forty kilometres per hour. His Honour described Mr Coyle as not a good witness and said he had no confidence in his evidence. 7 The defendant's evidence was consistent with the version she gave to the police at the time of the accident. His Honour said the defendant was a good straight forward witness. 8 In Cotton v Commission for Road Transport and Tramways (1942) 43 SR (NSW) 66 Jordan CJ said at 68: "... the driver of a vehicle in a busy street is entitled to act on the assumption that pedestrians whom he is approaching and who have the appearance of normal adults will take normal precautions for their own safety, unless there is something to indicate the contrary: Trompp v Liddle (1941) SR 108." 9 More recently in Stocks v Baldwin (1996) 24 MVR 416 Mahoney P stressed that 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. However, four things need 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 ongoing vehicle, the consequence of the 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. His Honour added that pedestrians sometimes act carelessly with sufficient frequency for a prudent driver to take account of it. 10 In Albert v The Nominal Defendant (1999) 29 MVR 107 at 109 Priestley JA said: "The bulk of these cases deal with situations where a motorist has had some reason, because of the surrounding circumstances, to be aware that pedestrians are likely to behave carelessly. The cases where the injured pedestrian has succeeded as plaintiff are cases where it has been established that the motorist, although driving at a pace and in a place which are lawful, has nevertheless been put on notice by conduct which the motorist did see or should have seen, that a pedestrian might act in such a way as to put that pedestrian in danger from the motorist." 11 In Derrick v Cheung (2001) 181 ALR 301 at 305 the High Court remarked that Stocks v Baldwin depended on its own facts. "What was unlikely in this case was that an unattended infant of such tender years would dart in front of a relatively slow moving vehicle on a busy road in such a way that a collision was, to all intents and purposes, unavoidable." 12 Judge Garling said that the principles in the various cases cited were not remarkable. The defendant owed the plaintiff a duty of care. The defendant had to be aware that pedestrians are likely to behave carelessly and accordingly has to drive safely and at such a speed that is safe. His Honour said: "What I have to consider here on the findings I have made is whether the defendant driver having seen the plaintiff cross to the centre of the road, stop, look at their car, should she either have slowed to such a pace that an accident would not have occurred or perhaps stopped. And I am afraid I cannot make that finding. It seems to me that this driver drove in a normal manner. That is, she travelled at a slow speed which I am satisfied was about 40 kilometres per hour. She at all times was aware of the pedestrian. The pedestrian crossed to the centre of the road then stopped and looked in her direction. Having done that I am satisfied that the defendant driver quite rightly continued to proceed at that slow pace. Once the plaintiff stepped from the centre of the road I am satisfied the defendant driver could have done nothing more than what she did, that was to brake and to swerve a little."