DECISION ON LIABILITY
15 In my opinion, it was open to the primary judge to find that, in all the circumstances, a speed of 50 kilometres per hour was excessive. In circumstances where the respondent crossed nearly two traffic lanes in view of the appellant, before being hit, and where the appellant caught sight of the respondent when he was still about 30 metres away, it was open to conclude that the speed of 50 kilometres per hour approaching a pedestrian crossing, albeit one controlled by traffic lights, was excessive. In my opinion also, another factor which could have been relied on was the appellant's evidence to the effect that he did not brake immediately when he first caught sight of the respondent, but waited an instant until he confirmed that this was a person crossing the road: one would expect that a driver travelling at 50 kilometres per hour in George Street would immediately brake if he or she caught sight of anything coming onto the road, without pausing to determine what it was coming onto the road. To put this another way, in my opinion it was open to take the view that, if a driver is travelling at 50 kilometres per hour in a busy city street where pedestrians might be expected to come onto the street, sometimes in disregard of the traffic rules, it is necessary to be extremely vigilant and to respond immediately and without hesitation to any indication that this might be happening. If one does not drive in this way, then one must drive at a lower speed.
16 However, in my opinion the apportionment was so unreasonable as to disclose error. It is true that a high standard is required of a person in control of a lethal object in a city street; but negligence was found against the appellant only because of what might be regarded as a small and momentary lapse from that high standard. On the other hand, the respondent moved quickly across the road, against the traffic lights, without looking for traffic, in circumstances where there were no other pedestrians on the crossing but were other pedestrians waiting at the kerb. In my opinion, his colour-blindness makes little difference: a colour-blind person must take account of this condition, particularly in situations where compliance with traffic lights is vital for the person's own safety and the safety of others. The respondent's responsibility for the accident was substantially greater than the appellant's.
17 This case is different from Podrebersek and Liftronic, which related to jury verdicts returned after adequate directions, whereas this is a judge's assessment unsupported by reasons. It is also different from the three Court of Appeal cases to which we were referred. In Ergul, where the pedestrian's responsibility was assessed at one-third, the pedestrian had almost completed crossing a road at walking pace, and other persons were also crossing. In Stocks, where the pedestrian's responsibility was assessed at 40 percent, the driver drove at 25-35 miles per hour in murky conditions in a kerbside lane alongside lines of cars stopped by traffic lights in the next two lanes, through which the pedestrian came "fighting the rain". In Tsuji, where the pedestrian's responsibility was assessed at 60 percent, the driver was travelling at 60 kilometres per hour in busy conditions and saw the pedestrian running towards the road but did not slow markedly.
18 Having regard to the degree of lapse from reasonable standards, and the degree of contribution to the accident, from both parties, an appropriate apportionment would be 25 percent for the appellant and 75 percent for the respondent.