Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Dungan v Chan [2013] NSWCA 182 Hearing dates: 14 June 2013 Decision date: 02 July 2013 Before: Ward JA at [1]; Emmett JA at [2]; Gleeson JA at [25] Decision: (1) Appeal dismissed. (2) Appellant pay the respondent's costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - negligence - road accident - whether driver breached duty of care to pedestrian - where collision occurred when traffic light green for vehicles - where pedestrian broke rules by commencing to cross when pedestrian light flashing red - whether driver failed to keep proper lookout Legislation Cited: District Court Act 1973, s 142 Cases Cited: Wheare v Clark [1937] HCA 7; (1937) 56 CLR 715 Stocks & McDonald Hamilton Co Pty Ltd v Baldwin (1996) 24 MVR 416 Tsuji v Metromix Pty Ltd [1998] NSWSC 691; (1998) 28 MVR 401 Albert v Nominal Defendant [1999] NSWCA 73; (1999) 29 MVR 107 Stojanoska v Fairfax [1998] NSWCA 225 Mobbs v Kain [2009] NSWCA 301; (2009) 54 MVR 179 Category: Principal judgment Parties: Wynne Lorraine Dungan (Appellant) Dominic Chan (Respondent) Representation: Counsel: C T Barry QC; G Walsh (Appellant) R O'Keefe (Respondent) Solicitors: CMC Lawyers (Appellant) Vardanega Roberts Solicitors (Respondent) File Number(s): CA 2012/290053 Decision under appeal Date of Decision: 2012-09-06 00:00:00 Before: Balla DCJ File Number(s): 2010/240158 Judgment 1WARD JA: I agree with Emmett JA. 2EMMETT JA: The appellant, Ms Wynne Dungan, collided with a taxi driven by the respondent, Mr Dominic Chan. As a consequence, Ms Dungan was injured. She claimed damages from Mr Chan in a proceeding brought in the District Court of New South Wales. The claim was dismissed by the District Court. Ms Dungan has now appealed to the Court of Appeal. The Collision 3The collision occurred on 18 September 2009 when Ms Dungan was crossing Parramatta Road, Camperdown, at a pedestrian crossing at the intersection of Parramatta Road with Ross Street and Western Avenue, which is within the University of Sydney. At that location, Parramatta Road is seven lanes wide. There are three lanes for traffic travelling east, towards the City, and four lanes for traffic travelling west, away from the City. The four lanes for westbound traffic, from south to north (or from left to right as one faces west), consist of a lane for buses and taxis next to the curb (lane 1), the next two lanes north of the kerb (respectively, lane 2 and lane 3) and a right-hand turn lane (lane 4). 4There is a pedestrian crossing on Ross Street, the crossing being parallel to Parramatta Road. There is also a pedestrian crossing on Parramatta Road from the north-eastern corner of the intersection between Ross Street and Parramatta Road. The intersection and the pedestrian crossings are protected by traffic lights. The pedestrian crossing at issue in this appeal is situated on the eastern side of the intersection. The crossing is approximately 20.4 metres long and is marked by two continuous white painted lines across Parramatta Road. On the westbound lanes, there is a third white line parallel to and east of the other two lines. The third line is usually referred to as the stop and is the point at which vehicles are expected to stop when the traffic lights are red. 5At about 7:15pm on 18 September 2009, Ms Dungan crossed Ross Street, walking parallel to Parramatta Road from west to east. She then proceeded to cross Parramatta Road, from north to south, with the intention of catching a bus travelling west along Parramatta Road. Mr Chan was driving his taxi west along Parramatta Road in lane 1. Ms Amy Hetherington was a passenger in Mr Chan's taxi. As the taxi approached the traffic lights, they were showing red for traffic travelling west on Parramatta Road. Mr Chan slowed down to around 10km per hour. There were other vehicles in lanes 2, 3 and 4 to the right of Mr Chan's taxi. They were stopped at the red light. When Mr Chan's taxi was about 30 metres from the pedestrian crossing, the traffic lights turned green. Mr Chan then started to accelerate, but "not at high speed". One might take that to mean that Mr Chan began to accelerate at a moderate rate. 6The traffic lights for pedestrians were in a phase that allocated time for the movement of pedestrians as follows: * a green man for a minimum of 6 seconds; * a flashing red man for a minimum of 18 seconds; * a solid red man; * after the solid red man appears, all pedestrian and traffic signals are red for 2.5 seconds. Thus, if Ms Dungan had proceeded to cross when a green man was showing, she would have had a minimum of 20.5 seconds to cross Parramatta Road before the light changed to green for westbound traffic. In fact, she was running when she collided with Mr Chan's taxi. The only inference to be drawn is that she set off to cross Parramatta Road well after the red man began flashing. When Ms Dungan started to cross Parramatta Road at the pedestrian crossing, the pedestrian warning light was flashing red. 7At some time during the course of her crossing she began to run. As Mr Chan's taxi approached the pedestrian crossing, at some stage Mr Chan saw Ms Dungan running past the vehicle in lane 2 and into lane 1. At that stage, the taxi was approaching the pedestrian crossing but had not yet reached the stop line. When Mr Chan saw Ms Dungan, he braked heavily. At that point, he was travelling at a speed significantly less than 50km per hour. The taxi stopped with its two front wheels over the eastern line of the pedestrian crossing. The left side of the taxi hit the left side of Ms Dungan's body and she was thrown to the ground. At the time of impact, the taxi had stopped. There was no damage to the taxi as a result of the impact. Ms Dungan's Contentions 8The complaint in Ms Dungan's statement of claim is that Mr Chan was negligent in that he: * failed to keep any proper lookout; * caused his vehicle to drive in a manner that was dangerous in the circumstances; * drove his vehicle at a speed that was excessive in the circumstances; * failed to keep his motor vehicle under any proper control; * failed to see Ms Dungan; and * failed to apply the brakes of his motor vehicle in time to avoid the collision. 9In her submissions to the trial judge, Ms Dungan said that Mr Chan had no reasonable regard for pedestrians who, given the busy nature of the intersection, might be likely to be on the pedestrian crossing. She contended that Mr Chan was not vigilant and did not keep a proper look out in the circumstances. She said that, by not stopping on the stop line, he gave himself no opportunity to check for the presence of pedestrians on the crossing and to check that driving across the pedestrian crossing was safe. Ms Dungan contended that a reasonably vigilant person in the position of Mr Chan, who saw that cars ahead of his taxi had stopped at an intersection known to be busy, could reasonably foresee that there may be pedestrians on the crossing. She said that a reasonable driver in the circumstances would have checked that there was no pedestrian at risk and would have stopped at the stop line and looked for pedestrians on the pedestrian crossing before moving onto the crossing. 10Ms Dungan contended that Mr Chan had put himself in the position of avoiding the requirement to stop at a stoplight. Rather, he eased up when approaching the lights, waiting to "jump" as soon as he saw the green light. It was put to the trial judge on behalf of Ms Dungan that a driver should pull up at a stop line, have a look and then go with the green light. She complained that Mr Chan "eased up" until he got the green light and then accelerated. It was submitted that Mr Chan avoided the very rule designed to protect people at intersections. The Trial Judge's Conclusions 11Evidence was given by Ms Dungan, Mr Chan and Ms Hetherington. The trial judge did not consider the evidence of Ms Dungan or Mr Chan as wholly reliable. She preferred the evidence of Ms Hetherington, who was a passenger in Mr Chan's taxi. The findings made by her Honour are based on Ms Hetherington's evidence. Ms Dungan relied on the rejection by her Honour of Mr Chan's evidence as indicating an awareness of guilt. Mr Chan said that he stopped at the stop line. Her Honour rejected that evidence. The trial judge considered that Ms Dungan had not demonstrated that Mr Chan could or should have seen her before he did see her. Her Honour took into account that there were vehicles in the lanes 2, 3 and 4 to the right of the lane in which Mr Chan's taxi was travelling and that it was twilight. Her Honour did not accept that a reasonably vigilant person in the position of Mr Chan would reasonably foresee that there could still be pedestrians on the crossing, simply because he could see that other vehicles had stopped. Her Honour considered that that fact was equally consistent with those drivers complying with the red traffic light. 12The trial judge observed that it had not been suggested that Mr Chan had seen any of the other drivers start to take off and then suddenly stop, which would have been consistent with Ms Dungan's stepping in front of such other vehicles. The traffic was stopped in the adjoining lanes and Mr Chan described a vehicle to his right larger than his taxi, which obstructed his view. Her Honour was not persuaded that Ms Dungan had shown that the gap between the stop line and the pedestrian crossing would have enabled Mr Chan to see Ms Dungan earlier. Her Honour found that Mr Chan did not stop at the stop line, but slowed down when he saw the red light and then accelerated when it turned to green. 13The trial judge said that Ms Dungan's case was limited to the proposition that Mr Chan should have waited a few seconds after the traffic light changed to green, in order to make sure that no one was crossing the road, despite the fact that he could not see anyone on the road and that the vehicle to his right had started to move off. Her Honour considered that that amounted to a submission that Mr Chan had to slow down to a speed where he could immediately stop in any conceivable circumstances. Her Honour rejected that submission, on the basis that it would impermissibly impose absolute or strict liability on drivers. 14The trial judge noted that the only proposition put by counsel for Ms Dungan was that Mr Chan should have stopped at the stop line. The effect of her Honour's findings was that Mr Chan would have been required to drive up to, and stop at, the pedestrian crossing, even though the traffic lights had been green for some seconds. Her Honour found that that would not be reasonable. Specifically, her Honour noted that counsel for Ms Dungan did not make any alternative submission nominating the speed at which it was suggested Mr Chan should have been travelling. In the circumstances, her Honour concluded that Ms Dungan had not established a breach of duty of care on the part of Mr Chan. Some Principles 15A driver is entitled to assume that others will observe the rules of the road. However, that does not mean that a driver may proceed at any pace he or she chooses or with complete indifference as to the possibility of a pedestrian emerging from somewhere as the result of accident, miscalculation, ignorance or recklessness. As a general rule, a person is entitled to assume that others will act in a non-negligent manner. However, where negligence is the issue, the real is question is whether, in all the circumstances, the person charged with negligence exercised the degree of care that those circumstances required. The standard of care expected of the reasonable person requires him or her to take account of the possibility of inadvertent and negligent conduct on the part of others (Wheare v Clark [1937] HCA 7; (1937) 56 CLR 715 at 723). 16The reasonable person would accept that it is not the duty of a driver to drive such that there is no foreseeable risk of injury to others. However, it does not follow that risks may be ignored. One must bear 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 oncoming vehicle, the consequent extent of the precaution that a driver must take against that eventuality and the extent of what a driver is able to do when confronted with such a danger. The damage that a driver may do to a pedestrian is great and that is an important matter when deciding what a driver must do. The inconvenience of driving more slowly is to be measured against what may be done to a pedestrian if the driver's estimate of the risk is wrong. Pedestrians act carelessly with sufficient frequency that a prudent person would take account of the possibility. Careless behaviour by pedestrians occurs often enough for a prudent driver to foresee it and to take it into account (Stocks & McDonald Hamilton Co Pty Ltd v Baldwin (1996) 24 MVR 416 at 418). 17Drivers of motor vehicles, being in charge of frequently lethal machines, are under a duty to drive reasonably in the circumstances in which they find themselves. Such circumstances include the fact that a driver is driving lawfully by obeying green lights and travelling within the limit proscribed by the law. On the other hand, other circumstances may need to be taken into account as well (Tsuji v Metromix Pty Ltd [1998] NSWSC 691; (1998) 28 MVR 401 at 403-4). Thus, a motorist may have some reason, because of the surrounding circumstances, to be aware that pedestrians are likely to behave carelessly. A driver may be guilty of breach of duty if it is established that, although driving at a pace, and in a place, that is lawful, the driver has nevertheless been put on notice, by conduct that the motorist saw or should have seen, that a pedestrian might act in such a way as to put that pedestrian in danger from the motorist (Albert v Nominal Defendant [1999] NSWCA 73; (1999) 29 MVR 107 at [6]). A motorist must always be conscious of the fact that a pedestrian may do something silly and must adjust his or her driving to account for that possibility. On the other hand, a motorist can hardly drive in such a way that he or she expects such accidents to occur every minute. Otherwise, no traffic would ever move. Unless there is some reason for a motorist to look to the right or the left, it is not surprising that he or she may be looking straight ahead when driving his or her motor vehicle (Stojanoska v Fairfax [1998] NSWCA 225 at [4]). 18Before there should be a finding of breach of duty, the evidence must disclose some factor that would cause a motorist to reduce his or her speed below the applicable speed limit, particularly if he or she is keeping a proper lookout. If a motorist slows down and does not see any particular danger, but has a clear explanation for not seeing a pedestrian, there may be no breach of duty. The mere fact that there was a possibility of a pedestrian being on the road would not of itself require a driver to slow down to a speed where he or she could stop in any conceivable circumstances. Such a finding would impose absolute or strict liability on drivers (Mobbs v Kain [2009] NSWCA 301; (2009) 54 MVR 179 [100]-[101]). The Issue in the Appeal 19In her amended notice of appeal, Ms Dungan relied on eleven grounds, all of which were supported by written submissions. However, the essence of Ms Dungan's case on the appeal was that, in circumstances where the intersection was known to be a busy intersection, it was late in the day, the light was reduced to twilight and there were cars stopped at the red traffic light in lanes 2, 3 and 4, Mr Chan was on notice that a pedestrian might still be on the pedestrian crossing, notwithstanding that the light facing him had turned green. Ms Dungan contended that, having been put on notice in that way, Mr Chan was under a duty, before proceeding onto the pedestrian crossing, to look carefully to see whether there were still any pedestrians on the crossing. Had he done so, he would have avoided the collision with Ms Dungan. 20Ms Dungan contended that the trial judge should have found that all the necessary elements for Ms Dungan's case had been established. In her amended notice of appeal, Ms Dungan contended that the trial judge should have made the following findings: * the pedestrian light facing Ms Dungan, as she crossed from the three lanes on the northern side of the pedestrian crossing to the four lanes on the southern side of the crossing, turned from flashing red to solid red; * when that occurred, the vehicles in lanes 2, 3 and 4 remained stationary because of her presence, notwithstanding that the traffic lights had turned green in their favour; * the fact that the vehicles in lanes 2, 3 and 4 remained stationary after the traffic lights had turned green would have alerted a reasonable person in the position of Mr Chan to the fact that pedestrians were still crossing at that time; * when the lights turned green in favour of the westbound vehicles, Ms Dungan commenced to run from lane 2 to the curb of the southern side of the crossing; * Mr Chan knew that the area was a busy one for pedestrians and for traffic; and * Mr Chan's taxi slowed down to a stop, or near stop, at the stop line, as the traffic lights facing the taxi turned green and, without checking to ensure that there were not still pedestrians seeking to cross the road on the pedestrian crossing, Mr Chan drove forward across the pedestrian crossing and collided with Ms Dungan. 21Ultimately, there appears to be no real complaint on the part of Ms Dungan concerning the findings made by the trial judge. The essence of her case is that the vehicles in lanes 2, 3 and 4 did not start moving immediately after the lights turned green in their favour and that that fact should have put Mr Chan on notice of the possibility that there may still have been a pedestrian on the crossing, notwithstanding that the lights had changed sometime before. She says that, in those circumstances, Mr Chan had been put on notice should have looked carefully to his right before proceeding onto the pedestrian crossing, notwithstanding that the lights were green in his favour. 22The difficulty with that contention is that there was no finding by the trial judge that there was an unusual, or inordinate, lapse of time from when the lights turned green in favour of westbound traffic, and Mr Chan's taxi arriving at the pedestrian crossing. It was not put to Mr Chan, or to Ms Hetherington, whose evidence the trial judge accepted as reliable, that there was an unusual delay. The only submission put to the trial judge was that the mere fact that the vehicles in lanes 2, 3 and 4 were stationary was sufficient to put Mr Chan on notice of the possibility of a pedestrian being on the crossing, notwithstanding that the lights had changed. Her Honour rejected that submission, on the basis that the simple explanation was that the vehicles in lanes 2, 3 and 4 had stopped for the red light. Her Honour was not asked to find that there was a delay after the lights changed before those vehicles began to move, such as would have alerted Mr Chan to something out of the ordinary. 23Ms Dungan contended that, if Mr Chan had been sufficiently vigilant he would have seen her crossing the pedestrian crossing, notwithstanding the presence of vehicles in lanes 2, 3 and 4. However, no attempt was made to demonstrate a line of sight that would have enabled Mr Chan to see Ms Dungan running across the pedestrian crossing contrary to the relevant regulations. It is clear enough that Ms Dungan emerged from behind a vehicle in lane 2, just as Mr Chan was reaching the pedestrian crossing. She came into contact with the left-hand side of the taxi, which had come to a standstill because of the sudden braking applied by Mr Chan. 24In all of the circumstances, there was no error on the part of the trial judge in concluding that there was no breach of duty on the part of Mr Chan. The collision between his taxi and Ms Dungan was caused by her ill-advised conduct in attempting to cross seven lanes of traffic after the pedestrian light began flashing red. The appeal should be dismissed with costs. 25GLEESON JA: I agree with Emmett JA. ********** 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. Decision last updated: 02 July 2013