New South Wales Court of Appeal CITATION: Jarzebski & 1 Or v Jiminez [2006] NSWCA 104 HEARING DATE(S): 03/05/06 JUDGMENT DATE: 3 May 2006 JUDGMENT OF: Ipp JA at 1; Basten JA at 34; Hislop J at 35 EX TEMPORE JUDGMENT DATE: 05/03/2006 DECISION: (1) The appeal against liability is dismissed (2) The order made by the trial judge that the respondent's damages be reduced by 45 per cent is set aside and in lieu thereof an order is made that the respondent's damages are to be reduced by 60 per cent (3) The judgment entered by the trial judge of $770,000 is set aside and in lieu thereof there will be a verdict and judgment in the amount of $560,000 for the respondent (4) The costs of the trial to be paid by the defendants. Each party will pay its own costs of the appeal. CATCHWORDS: NEGLIGENCE - respondent struck by a taxi while walking across a busy city road - taxi driver did not see respondent until just prior to impact - whether taxi driver was negligent - whether taxi driver should have been alert to the possibility of someone crossing the road - whether taxi driver had an opportunity to see the respondent - contributory negligence - apportionment - respondent did not cross at pedestrian crossing - respondent intoxicated. ND CASES CITED: Manly v Alexander (2005) ALJR 413 PARTIES: Wojciech Jarzebski & Green Cabs Pty Ltd (Appellants) Jess Abel Jiminez (Respondent) FILE NUMBER(S): CA 40481/05 COUNSEL: D F Rofe QC/B Hull (Appellants) S Norton SC/M Fraser (Respondent) SOLICITORS: G Mallos (Appellants) Marsdens Law Group (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 9497/00 LOWER COURT JUDICIAL OFFICER: Murray ADCJ LOWER COURT DATE OF DECISION: 05/17/2005 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40481/05 DC 9497/00 IPP JA BASTEN JA HISLOP J Wednesday 3 May 2006 WOJCIECH JARZEBSKI & GREEN CABS PTY LIMITED v JESS ABEL JIMINEZ Judgment 1 IPP JA This appeal concerns an action for negligence by the respondent, Mr Jess Jiminez, for damages for personal injuries. 2 The respondent was injured at about 11.45pm on Friday 10 July 1998 when he was struck by a taxi in Park Street between the intersections of Pitt and Castlereagh Streets. The taxi was owned by the second appellant in the appeal and driven by the first appellant. 3 Before the trial, the parties agreed on the quantum of damages and the issues before the trial judge, Murray ADCJ, were whether the driver of the taxi breached his duty of care to the respondent and if so, what apportionment, if any, should be imposed. 4 Neither the respondent nor the driver of the taxi gave evidence as to the circumstances of the collision. The respondent suffered severe brain damage in the collision and he did not recall the circumstances under which he had been injured. The driver of the taxi had, in effect, disappeared and was not present at the trial. No adverse inference was drawn from his omission to testify. 5 The appellants admitted in their defence to the statement of claim that the respondent had been walking across Park Street when the taxi collided with him. 6 The respondent lived in an apartment on the southern side of Park Street, not far from the accident. Diagonally opposite from where he lived was a convenience store. He was accustomed to buy food at that store on his way home from work. It is uncertain what the respondent's movements had been during the evening of the accident, but it is possible that he had been at that convenience store immediately prior to attempting to cross the road. The inference is that he was crossing Park Street on his way home when the collision occurred. 7 An important feature of the case is that the respondent was found after the collision to have the particularly high blood alcohol content of 0.268 grams per 100 millilitres. There is little doubt that he was significantly under the influence of alcohol at the time. 8 At the time of the accident there were three eastbound traffic lanes in Park Street. The northernmost lane, referred to as lane 1, was 2.9 metres wide; the next lane to the south, lane 2, was 3 metres wide, and lane 3 was 3 metres wide. 9 The judge found that the point of impact, determined by a pool of blood found on the road, was approximately 6 to 7 metres south of the northern kerb of Park Street. That means that, at the time of the impact, the Respondent was about a metre into lane 3. The rear of the taxi was 37 metres from the Pitt Street pedestrian crossing and 63 metres from the crossing at Castlereagh Street. 10 The judge found that the position of the pool of blood indicated that, at or shortly prior to the impact, the taxi had swerved to the right, "such that its offside wheels were in line with the southernmost dividing lane line". 11 The police interviewed the taxi driver at the scene and an exchange between him and the police officer concerned was recorded in the police notebook. This exchange indicates a number of relevant matters concerning the conduct of the taxi driver at the time. As he was travelling east along Park Street, the taxi driver stopped at the intersection of Park and Pitt Streets. The traffic lights at that intersection (that being a controlled intersection) were red. Having again commenced moving forwards, the taxi driver reached a speed of 25 to 30 kilometres per hour before the collision. He was asked what he saw before the impact and he replied, "I didn't see him walking, I only saw him standing in front of the taxi that I was driving". The driver described the traffic density at the time as "medium free-flowing". He said that he believed that he applied brakes before impact. He explained that he was travelling in lane 3 because he was preparing to turn right into Castlereagh Street. He said that the person with whom he collided was facing in a westerly direction in the third lane, that is, facing the oncoming taxi. There was no evidence of skid marks left at the scene by the taxi. 12 The collision occurred at a point in Park Street where there are many hotels, bars and restaurants. It is a particularly busy area on a Friday evening. A taxi zone runs along the northern side of Park Street for most of the distance between Pitt and Castlereagh Streets. The head of a queue of persons waiting for a taxi in that zone would be some 20 metres west of Castlereagh Street. On Friday evenings large numbers of pedestrians were customarily in the area and there was usually a queue of people waiting at the taxi rank. It was not unusual for the taxi queue to extend, from the head of the queue, westwards for some 20 to 30 metres. 13 A witness, Mr Xanthos, who was the proprietor of a coffee shop on the southern side of Park Street, said that the custom was for taxis to pull up, immediately pick up a fare and move off again. He also said that it was not unusual for pedestrians to cross Park Street in the region between Castlereagh and Pitt Streets and not at the pedestrian crossings, and this was particularly the case at busy times such as Friday evenings. 14 His Honour pointed out that the respondent had travelled a distance of 6 to 7 metres from the nearside kerb to get to the point of impact. The judge found that, had the taxi driver been keeping a proper look-out, he would have been able to see the respondent moving across. His Honour took into account that the taxi driver stopped at the intersection of Pitt and Park Streets and this gave him more time to observe the respondent. His Honour said that the most telling factor against the taxi driver was the fact that, "he just did not see the [Respondent] until the last millisecond before impact". For these reasons, his Honour found that the taxi driver had been negligent. 15 In dealing with contributory negligence, his Honour pointed out that a prudent person in the position of the taxi driver should have been alert to the possibility of pedestrians emerging onto the carriageway. At the same time, he said, a prudent pedestrian would be expected to cross at the Pitt Street or Castlereagh Street intersections where there were traffic control lights. The judge also took into account the fact that the respondent was intoxicated. He concluded that an appropriate apportionment of liability would be 55 percent against the defendants and 45 percent against the respondent. 16 On appeal, the principal point urged by Mr Rofe QC who, together with Mr Hull, appeared for the appellants, was that the judge, on his submission, had reversed the onus of proof and there was insufficient evidence on which his Honour could have drawn a conclusion that the taxi driver was negligent. 17 I would not accept these submissions. This is not a case where the inference of negligence depends on speculative factors. 18 The starting point is the admission that the respondent walked across from the northern kerb to the point of impact, a distance of 6 to 7 metres. That has to be seen in the context of the fact that it was a very busy time of the evening; there were many pedestrians in the area; there was a taxi rank on the northern kerb; there were many pedestrians and by inference, at least some people waiting for taxis there, and it was not unusual for persons to cross the road in that vicinity, notwithstanding the existence of controlled intersections at Pitt and Castlereagh Streets. These factors mean that, as the Judge found, the taxi driver should have recognized the possibility of someone crossing the road at the point the respondent crossed and should have been particularly alert. 19 The next question concerns the opportunity that the taxi driver had of seeing the respondent. Mr Xanthos had never seen cars parked in lane 1 on Friday evenings and that was a particularly busy time for taxis, with many pedestrians in the vicinity. I accept that, on the evidence, it was appropriate to infer that there were, in fact, no cars parked in lane 1. I do not regard that as a matter of speculation. 20 The head of the taxi queue was approximately some 20 metres to the east of the point of impact and I would infer that, if any taxis at the time were stopping to take passengers on board, they would have stopped past the point of impact and not interfered with the taxi driver's line of vision. I would add that the respondent was 5 foot 9 inches tall and at least the upper part of his body and head would have been visible, in any event. 21 There was evidence, as I have mentioned, that there was a free flow of traffic at the time. The respondent was able to cross lanes 1 and 2. There must have been a gap in lane 2 between vehicles travelling eastwards, to enable him to do so. The existence of that gap would have allowed the taxi driver, had he been keeping a proper look out, to observe the respondent crossing both lane 1 and lane 2. None of these factors is speculative and, in my opinion, constitute evidence on which the respondent was entitled to rely to discharge the onus of proof on him. 22 The collision occurred at a very busy time and place. The area of Park Street in question was surrounded by places serving alcohol. It is not unreasonable to suppose that the taxi rank was located there to assist persons, who have been drinking, to go home by taxi. There were many pedestrians in the vicinity at the time. It was not unusual for pedestrians to cross the road at points other than the controlled intersections. As a taxi driver, the first appellant knew or should reasonably have known these things. 23 In Manly v Alexander (2005) 80 ALJR 413 at [11], the majority of the High Court emphasised the duty of a driver to give "reasonable attention to all that is happening on and near the roadway that may present a source of danger". Their Honours stated, in the same paragraph, that giving exclusive attention to that danger would more often than not "require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path". It is not so much the expression of this principle, which does not recount any startlingly new proposition, but the emphasis given by the majority to the duty of drivers of vehicles to be duly observant of all possible sources of danger on the road that is of particular relevance in this case. 24 In my opinion, the challenge to the finding of negligence on the part of the taxi driver must fail. 25 I turn now to the issue of contributory negligence. 26 The taxi driver was negligent, as I have mentioned, in failing to keep a proper look out. This bare statement has to be seen in the context of the surrounding circumstances to which I have referred. The taxi driver's failure to observe the respondent is exacerbated by those circumstances. 27 On the other hand, the respondent himself plainly failed to keep a proper look out. He did not take proper care for himself. The same factors that applied to the taxi driver, namely, that it was a particularly busy area and known to carry a considerable amount of vehicular and pedestrian traffic, applied to the plaintiff himself. In his evidence in cross-examination the plaintiff acknowledged that it was his custom, if he was in a hurry, to cross Park Street in the middle of the road between Pitt and Castlereagh Streets and not at the pedestrian crossings. He said that he knew that that was wrong but said that he had been prepared to take the risk. The risk was obvious. 28 In addition to not keeping a proper look out, the respondent was intoxicated and that is a further factor that adds to the contributory negligence on his part. 29 In considering the degree of causative culpability of both parties, I regard the respondent as having created the situation of danger. The taxi driver had to react to the situation created by the respondent. 30 His Honour, in listing the respects in which he found the respondent to be guilty of contributory negligence, omitted to mention the fact that the respondent himself did not keep a proper look-out. In my view, this was not a mere, formal, omission. It was an important factor that his Honour did not bear in mind. In my opinion, the trial judge erred in attributing more blame for the collision to the taxi driver than to the respondent. 31 In my opinion, an apportionment of 60/40 against the respondent would meet the justice of the case and I would propose an apportionment in those terms. 32 The court has been informed that the agreed sum of damages was 1.4 million dollars. Forty percent of that amount is $560,000. 33 Accordingly, I propose the following orders: 1. The appeal against liability is dismissed. 2. The order made by the trial Judge that the respondent's damages be reduced by 45 percent is set aside and in lieu thereof an order is made that the respondent's damages are to be reduced by 60 percent. 3. The judgment entered by the trial Judge of $770,000 is set aside and in lieu thereof a verdict and judgment in the amount of $560,000 should be ordered. Those are the orders that I propose. 34 BASTEN JA: I agree with the orders proposed by Ipp JA and with his Honour's reasons. 35 HISLOP J: I also agree. 36 IPP JA: The Court has determined that the costs of the trial will be paid by the defendants. Each party will pay its own costs of the appeal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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