Knight v Maclean

Court of Appeal (NSW)|2002-09-11|Before: Meagher JA, Heydon JA, Young CJ

CITATION : Knight v Maclean [2002] NSWCA 314 revised - 14/10/2002 FILE NUMBER(S) : CA 40976/01 HEARING DATE(S) : 11 September 2002 JUDGMENT DATE : 23 September 2002

PARTIES : Thomas Job Knight (Appellant) Ruth Catherine Maclean (Respondent) JUDGMENT OF : Meagher JA at 1; Heydon JA at 2; Young CJ in Eq at 73

LOWER COURT JURISDICTION : District Court LOWER COURT 7841/00 FILE NUMBER(S) : LOWER COURT Dent DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40976/01 DC 7841/00

MEAGHER JA HEYDON JA YOUNG CJ in Eq

Tort - negligence - duty of care - existence - scope - collision between motor vehicle and pedestrian - pedestrian struck by vehicle while crossing road - proper precautions of driver

Tort - negligence - liability - contributory negligence - apportionment of liability The plaintiff sustained physical injuries when she was struck by the defendant's motor car as the defendant drove along a road which the plaintiff attempted to cross on foot. The plaintiff sued in tort alleging that the defendant drove negligently, failing to keep a proper lookout. The primary judge found in favour of the plaintiff but reduced the sum of damages awarded on the basis of the plaintiff's contributory negligence in attempting to cross the road while intoxicated and herself taking adequate precautions for her own safety. Contributory fault was assessed at 40%.

The defendant appealed as to liability and alternatively as to apportionment of fault.

Held (Heydon JA, Meagher JA and Young CJ in Eq agreeing), allowing the appeal:

The defendant did not owe the plaintiff the alleged duty of care. Although the movement of pedestrians at some speed across the road was reasonably foreseeable, the appearance of the plaintiff at a fast walk was not a particular risk or danger which was perceivable, observable or apparent: [62]-[64].

Tidy v Battman [1934] 1 KB 319; Teubner v Humble (1963) 108 CLR 491, considered; Derrick v Cheung (2001) 181 ALR 301 applied.

The defendant's driving satisfied conventional criteria for safe driving by maintaining a modest speed, moving with the flow of traffic, maintaining a reasonable distance from the vehicle in front and keeping a proper lookout. He was entitled to concentrate on looking straight ahead until he noticed something to the left which called for greater concentration on the left. A finding of liability in these circumstances would create a form of strict liability, not recognise a form of liability in negligence: [65]-[70].

Derrick v Cheung (2001) 181 ALR 301, applied. O R D E R S

The trial judge's orders are set aside, and in lieu thereof there is a verdict for the defendant.

The respondent is to pay the appellant's costs of the trial and of the appeal.

The respondent is to have a certificate under the Suitors Fund Act if qualified.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40976/01 DC 7841/00

MEAGHER JA HEYDON JA YOUNG CJ in Eq

23 September 2002 KNIGHT v MACLEAN Judgment 1 MEAGHER JA: I agree with Heydon JA. 2 HEYDON JA: This is an appeal by an unsuccessful defendant against a verdict and judgment for the plaintiff in the sum of $150,494.40 given by Dent DCJ, QC, on 15 November after a trial on 13 and 14 November 2001. The damages were compensation for injuries suffered when a car driven by the defendant hit her at about 9.10pm on 5 November 1997 whilst she crossing a busy road. The damages were reduced by 40% in consequence of her contributory negligence. 3 The appeal raises two points. The first is whether the trial judge was correct in holding the defendant negligent, which raises both factual controversies and controversies as to the standard of care stipulated by the trial judge. The second point is whether the apportionment for contributory negligence was correct.

The trial judge's reasons for judgment: liability 4 At the time of the accident the defendant was nearly 72. He died just before the trial. The principal witnesses were the plaintiff and an independent witness who observed the accident from her house on the other side of the road. 5 The trial judge described the accident scene as follows: "The facts of the subject accident involve first of all a close examination of the scene. It occurred in lane three of Parramatta Road according to the reconstruction of the attending police about twenty metres to the east of Palace Street and seven metres onto the carriageway and in lane three. Parramatta Road at that point is about the crest of what is known as the Taverners Hill. It is a three lane road in each direction divided by a narrow median strip, overhead street lighting is provided and the road is kerbed and guttered with a pavement on each side of the road. The surface is bitumen. There are lane lines marking out three lanes in either direction. To the east of the scene of the subject accident is Norton Street, Leichhardt, a substantial intersection controlled by traffic control lights and Palace Street, by photographs which form part of exhibit A, is demonstrated to be a quite wide street which is a two-way street but where it enters Parramatta Road is a T-intersection that permits traffic to leave it only by a left turn into Parramatta Road. The general aspect of the scene of the accident from the point of view of the driver proceeding west in Parramatta Road is an open aspect. The pedestrian concerned, the plaintiff, was in the vicinity of a street light at Palace Street and she was wearing light blue jeans and a pink sweater top which was a long sleeved one."

To the extent that the second paragraph of this passage suggests that Palace Street was east of the accident site, it is erroneous: the correct position is stated in the first paragraph. 6 It was common ground that the plaintiff was a theatre nurse who worked at Westmead Children's Hospital. She was nearly 29. During the day her neck became painful and she was sent home. She received treatment from a chiropractor but her neck remained stiff and painful. This meant she could not turn her neck left or right, but had to turn her entire torso to look in either direction. She went to a home unit occupied by two men whom she knew. She estimated that while there she drank four cans of beer, but an analysis of a sample of her blood taken about 45 minutes after the accident revealed that it contained 0.249 grams of alcohol per 100 millilitres of blood. An investigating police officer said she noticed an extremely strong smell of liquor coming out of the back of the ambulance in which the plaintiff was placed after the accident. She also said of that blood alcohol reading that it revealed "an extremely high level of intoxication". She further said that one of the plaintiff's companions was "heavily intoxicated", having slurred speech, needing support to stand up, being unsteady on his feet and smelling of alcohol. The independent witness thought the plaintiff was drunk, could hardly walk in a straight line, was "leaning all over the cars that were parked in the kerbside", and could not stand by herself. In view of one of the defendant's arguments on appeal, it is necessary to record an observation of the trial judge: "I make the obvious comment, from years and years of listening to evidence of this nature, that the four beers must have been the four most potent that the plaintiff had ever drunk. The plaintiff herself described herself in evidence as a little drunk and I see no reason to doubt that description the plaintiff gives of herself."

A little later the trial judge said that the pain of her neck "may have been somewhat subdued by the liquid medicine that she had taken". 7 Her male friends, whom she herself described as quite drunk, wanted her to stay at the home unit, but she wanted to go home because she had to work the next day. The home unit was in Palace Street. They walked down Palace Street in a northerly direction to Parramatta Road, where she intended to hail a taxi and go west along Parramatta Road to her home in Summer Hill. There were no taxis proceeding west, but there were vacant taxis going east. After she and her friends engaged in a noisy altercation, one of them hailed an eastbound taxi and caused it to stop. He crossed the road. She then crossed the road in a northerly direction in order to get into the taxi. She was then struck by a vehicle being driven by the defendant in lane three, the lane nearest to the median strip, while he headed west. 8 The trial judge drew attention to the fact that there were differences between a statement provided to a police officer by the defendant on the day of the accident and the contents of a tape recorded interview between an insurance investigator and the defendant about six months after the accident, on 16 May 1998. He said: "It goes without saying that that version of the accident presented on 16 May 1998, well after the collision, is a significantly different version to that which Mr Knight proffered to the constable on the evening of the accident. Significant in this way, that on the evening of the accident he simply spoke of a female walking in front of his car from the number two lane, and absent from any account on the night of the accident, was any suggestion that his potential view of the pedestrian was obscured by any other car. The later statement asserts that the plaintiff moved in front of that other car which he saw had braked somewhat and the later statement asserts the plaintiff was running, an assertion that he did not make on the night of the accident. I would comment that this disparity in the accounts of how the accident occurred would have offered counsel for the plaintiff a very fertile field of cross-examination to determine what degree of attention Mr Knight was really paying to the footpath area and the lanes to the left of him as he proceeded along the Parramatta Road that night. The later statement is also significant in that it is quite clear that at its conclusion he was asked 'Do you have the details of any other witnesses', bearing in mind that he did not have the details of the driver in lane two that he asserted had stopped but he asserted the police did have them. And he said, 'I do have the name and address of two that offered to be a witness if required, yes'. 'Are you able to supply me with these before I leave' he was asked. He said 'Yes'." 9 The trial judge described the evidence of the independent witness, whose residential unit looked south across Parramatta Road, thus: "She went to the terrace and there she saw three people having an argument on the opposite side of the road, two males and a female who proved to be the plaintiff. She said she stayed on the balcony and they argued for probably ten minutes. They were on the footpath when she first saw them. She said that one of the males left the group to cross Parramatta Road to her side and that the other male proceeded west. Her vision of the male who had crossed the road was obscured but she saw a taxi pull up where he was. She then described the plaintiff as having suddenly bolted out from the kerb between two parked cars straight out onto Parramatta Road diagonally. She said that one car passed her and that the plaintiff was looking west and walked straight on. She thought from her observations that the plaintiff was drunk and she described her as walking into lane three, straight into the oncoming car were her words initially but then she explained that seconds passed before the vehicle in lane two had passed and the plaintiff was struck by the vehicle in lane three. She described the defendant's vehicle as stopping quite quickly and in cross-examination she agreed that by 'bolted' she meant that the pedestrian went from a stationary position to a quick walk, that she didn't start slowly, that it was like she had a mission to get to the other side and that she kept walking quickly, starting at a slight angle. She said that the plaintiff was standing right in front of her. A gym near the corner of Palace Street and her account of course does not stand with the account given by Mr Knight in his recorded interview with Mr Alan Sheppard because it is quite clear from her account that in passing across the road the plaintiff walked to the rear or behind the car in lane two, onwards into lane three." 10 In the part of his reasons for judgment dealing with liability, the trial judge said that the plaintiff was "an essentially honest witness". In the parts of his reasons for judgment dealing with damages he said she was a witness of truth, "in no sense whatever a case maker or an exaggerator", "not a case maker and not a liar, and an understater rather than an overstater of the problems that she suffers", and "an honest woman". The trial judge's summary of her evidence was: "they were standing at the end of a number of parked cars and one of the men ran across to get a taxi and got it, that she then walked from the line of parked cars to the margin of lanes two and three, that she had looked right before crossing to that point and that she looked right again at that point and she could not see any cars so she continued. To look to the right it was necessary for her to turn her whole body as she was suffering from a stiff neck so she would of necessity have to turn her torso rather than her head on her neck to look. She thought that they had been waiting for a cab between ten and fifteen minutes and that when she took her look from the margin between lane two and three she saw cars some metres down the road and inferentially thought it safe to cross and so did, walking into the path of the vehicle which hit her. She expanded on her movements in chief by explaining that she had looked right and let one car go past her in lane two and that she did not see the vehicle that struck her before it struck her, that her leg action was a quick walk, not running."

The trial judge said that evidence was not changed in cross-examination. 11 The trial judge then said: "Part of exhibit A is a road map of the Parramatta Road which shows the relationship of Palace Street to the area. The Parramatta Road itself is a road largely fronted by businesses of various kinds including restaurants. The areas to the north and south of Parramatta Road are a mixture, from my knowledge, of small businesses and residential streets. The street Palace Street is a street into which a series of other streets feed all the way back to the railway line which proceeds from Central to Parramatta. It is, in my judgment, an area where one could anticipate vehicular and pedestrian traffic at the hour of the day when this subject accident occurred. Balancing all the known facts, the accounts of the eye witnesses and the different accounts of Mr Knight, the defendant, I am driven firmly to the conclusion that in the seconds prior to the subject accident occurring Mr Knight was driving his motor vehicle without showing the degree of vigilance and look-out that is demanded of a motorist using the public highway because in law the motorist does not enjoy a right of way in respect of a pedestrian crossing the road any more than the pedestrian enjoys a right of way against the motorist proceeding down the road. The available cone of vision to a motorist travelling in lane three is a superior one to that of a motorist travelling in lane two as far as observations of pedestrians seeking to cross the road are concerned. Palace Street was an intersection in the immediate vicinity of the subject accident. The long experience of mankind that intersections are places where one is more likely to encounter pedestrians and vehicle traffic is surely reflected in the somewhat out of date but nonetheless still current regulations under the Metropolitan Traffic Act which require the driver of the vehicle to reduce his speed to walking pace at intersections and in certain other instances. The reasonable motorist on a highway such as the Parramatta Road is not entitled to expect that pedestrians will allow him or her right of way. He must drive in anticipation of a pedestrian crossing the road in such a fashion as to require him to adjust his speed downwards if he and the pedestrian were to continue. I am satisfied that there was a significant lack of observation by [the defendant] on the evening in question and that had [the defendant] been observant he would have seen the pedestrian significantly before he did and been able to sharply reduce his speed to one that would avoid a collision or minimise the effect of it. What happened here was that he hit the pedestrian when his vehicle was possessed of so much forward energy that it was able to propel the pedestrian's body to rest quite some distance down the road in front of his vehicle. I turn now to the position of the plaintiff. The plaintiff was on her own view a little bit drunk and, on any view of the amount of ethanol in her bloodstream, in a state where she would have reduced her capacity to form a sound judgment as to the danger that vehicular traffic along the Parramatta Road might pose to her at a time when she exercised her right to cross the road on foot. Had she not been in that condition she would in my view have seen that Mr Knight's vehicle was sufficiently close to her intended path to cause her to realise that Mr Knight would have to slow down if she continued crossing. The plaintiff of course attributes part of her difficulties to the fact that she had a stiff neck and I have not the faintest doubt that she did have a stiff neck and a painful neck on the night concerned, although the pain may have been somewhat subdued by the liquid medicine that she had taken. Nonetheless the problem of the alcohol was there. She must be in law judged by the standard of the ordinary reasonable pedestrian unaffected by alcohol, and that person is required to make judgments based upon proper observations as to whether or not it is reasonably safe to cross a carriageway on foot. This plaintiff's judgment in my view was significantly impaired at that time. She quite clearly did not see Mr Knight's vehicle driving down towards that area. It was, on the view of the independent eye witness, some seconds in travel to the rear of the vehicle in lane two but I am satisfied from the photographic exhibits that it was there to be seen and Miss Maclean did not see it and that she should have seen it and this failure to accurately observe amounts to a state of affairs which is contributory negligence. The defendant in my view has proved the plaintiff was guilty of contributory negligence which has contributed to the damages that she sustained."

The defendant's factual arguments on appeal in relation to liability 12 Counsel for the defendant submitted that the trial judge "uncritically accepted the evidence of the [plaintiff] without reconciling the internal inconsistencies within that evidence and the conflict between that evidence and that of the only independent witness … ." Counsel submitted that the trial judge's finding that the plaintiff was honest was not protected by principles which make it difficult to attack the credit-based findings of trial judges on appeal, because there was unchallenged objective evidence of the plaintiff's unreliability. Counsel submitted that the trial judge "dismissed entirely" the evidence of the defendant, but instead of concentrating on the differences between his two statements, should have noted the significant correlation between them and the rest of the evidence, particularly that of the independent witness. It was submitted that it was natural that the second statement, taken over a lengthier period, would contain detail which was not in the first statement. The trial judge failed to note -

(a) that the fact that the defendant was travelling at 60 kilometres an hour was not in issue;

(b) that the existence of a car in lane two was supported by both the independent witness and the plaintiff;

(d) the contention in the second statement that the plaintiff was "running" was confirmed by the evidence of the independent witness that she "bolted" in the sense of proceeding at "a quick moving walk" and "went straight out very quickly". 13 Counsel for the defendant did accept that while the defendant recalled the plaintiff appearing in lane three, having passed in front of the car in lane two, the independent witness said she came from behind the car in lane two. It was submitted "that this discrepancy does not derogate from the essential burden of the evidence, ie that the [plaintiff's] presence was masked by another car in the second lane, that she did not stop, that she was moving quickly and walked straight into the lane in which the [defendant] was travelling." It was conceded that the independent witness was correct and that the defendant was wrong in saying that the plaintiff crossed the road in front of, rather than behind, the car in the second lane. 14 Counsel for the defendant then said that the police evidence was that the plaintiff's blood alcohol reading revealed "an extremely high level of intoxication, referred to the independent witness's evidence, and said that the trial judge sought to trivialise this problem in the [plaintiff's] evidence without coming to terms with its obvious false nature". 15 Counsel for the defendant then drew attention to an important difference between the evidence of the plaintiff and the evidence of the independent witness. The evidence of the plaintiff was that she looked to the right before beginning to cross the road, allowed the car in the second lane to pass, moved into the second lane, looked to the right again, saw nothing coming, moved into the third lane and was then struck by the defendant's vehicle. On the other hand, the independent witness said that the respondent walked quickly across the road and did not at any time stop or look to the right, but only to the left. Counsel for the defendant submitted that the question of negligence should have been considered on the basis that the independent witness was correct.

Factual issues: general 16 It is not correct to say that the trial judge "dismissed entirely" the defendant's evidence. It would be truer to say that he by-passed or did not deal with or vacillated about resolving the conflicts between the defendant's evidence and other evidence, particularly on the question whether the plaintiff moved in front of the car in the second lane or behind it. 17 Nor is it correct to say that the trial judge trivialised the plaintiff's drunkenness. The trial judge perhaps attempted to let the plaintiff down gently and attempted to deal with the issue with humour, though perhaps not with successful humour. But the point of the humour turned on his perception that there was in fact a high degree of intoxication, as there obviously was. He placed significant reliance on it as part of his reasoning in reducing the damages for contributory negligence. 18 It is also not correct to suggest, as the defendant's submissions did, that the trial judge gave unqualified preference to the plaintiff over the defendant and over the independent witness. Rather, again, he tended to sidestep or by-pass or vacillate about resolving the precise differences to be found among the evidence. 19 One other factual matter may be put aside. Counsel for the defendant contended in writing that the trial judge had summarised the independent witness's evidence incorrectly and misunderstood it. The matter was debated orally, but counsel for the defendant did not demonstrate that his criticism was either sound or significant.

Did the trial judge make any finding on the issue of whether the plaintiff looked right? 20 The principal difference of significance between the plaintiff's evidence and the evidence of the independent witness turned on whether, as the plaintiff said, she looked right, saw the car in the second lane, allowed it to pass, moved to a point between the second and third lanes, looked right again, did not see the defendant and moved forward before being hit; or whether, as the independent witness said, the plaintiff moved straight from the side of the road across lane one and lane two before being hit in lane three. (There were two other minor differences: the plaintiff said that she crossed the first lane by moving past the first of four parked cars on her right, there being no parked cars on her left, while the independent witness said the plaintiff came out between parked cars. And the plaintiff suggested that she moved straight across the road, while the independent witness said she moved diagonally. These were not differences of any significance to the decision of the case. As to the first, it was common ground that, viewed from the defendant's perspective, at least part of the plaintiff's body would have been obscured by parked cars. As to the other difference, the precise angle does not appear to have increased or reduced the chance of collision.) 21 The plaintiff's evidence on the significant point of difference was: "Q. And where did you go then? A. Turned right on to Parramatta Road, and they were trying to talk me into not going yet, and - was standing on the first lane, there was some cars parked there. We were just talking for a little while. I was waiting for a taxi of course, they were all on the other side. And then one of the men ran across and got a taxi on the other side of the road. So I tried to get across as well. I let a car go past, and then I went across that second lane, and then I looked to my right again, I had to turn my whole body, I couldn't see any cars, I had a good view, and that was the last thing I recall. … Q. You also said in your long answer when describing what happened that when you turned you turned your whole body, why was that? A. Because the right side of my neck was sore. I was feeling a little bit dizzy at the time. … Q. Now when you did look to your right what, if anything, did you notice about the traffic conditions? A. Wasn't that heavy, and there wasn't anything for a few metres down the road. Q. When was that? A. That was when I was in the second lane, when I turned my whole body around, there was no car coming. … Q. And when did you start moving in relation to the time that Colin probably went across the road? A. That was after I looked to the right, and one car went past, I let the car go past, and then when I went to cross the third lane - I turned and I didn't see anything coming and I crossed. Q. Which way did you turn? A. To the right. … Q. Did you see the defendant's car before it struck you or not? A. No I didn't. Q. Now when you were moving across the road, can you describe your leg action? A. My leg action? Q. Mm. A. It was a quick walk. Q. Did it ever get to be more than that or not? A. No. Q. Did you run or not? A. No." 22 In cross-examination she said: "Q. As I understand your evidence you said that because of your problems with your neck and when you were looking at anything to your right you had to turn your body round, is that right? A. Yes that's correct. Q. And you say, as I recall your evidence, that's what in fact you did this evening -- A. Yes that's correct. Q. - before you proceeded into the third lane? A. Yes. Q. You were nearly struck by a vehicle in the second lane weren't you? A. Mm mm. Q. That's right? A. I let the vehicle go past. Q. So you proceeded from behind, if I can put it this way, or in front of a parked vehicle in the left hand lane, you were standing towards the kerb as you've said in front of a vehicle parked at the kerb side lane? A. Mm mm. Q. You moved out into the second lane? A. Mm mm. Q. Missed very closely a car in the second lane, is that right? A. I let the car go past and then I crossed. Q. It nearly collected you didn't it? A. No. Q. Well it came very close didn't it? A. No I let it go past and then I went and then I stopped. Q. So you say you let this vehicle go past and then you moved what across the middle lane? A. Yes." … Q. One, two and three thank you your Honour. A. Lane one I'd crossed, lane two I let the car go past, right across and then I was in the middle of between lane two and three and I've turned around and there was nothing coming and I crossed -- Q. So you proceeded across lane two before you looked right? A. Yes. Q. Now you've said [you saw] nothing for a few metres? A. No. Q. You looked to the right, there was nothing for a few metres? A. Mm mm. Q. That's as far as you could see? A. Yes. Q. And then you proceeded across or into lane three, in the middle of lane three and you were struck is that right? A. Yes." 23 Later she said: "Q. And in fact one of those vehicles had just passed you before you moved into the third carriageway? A. Mm mm. Q. You moved into the second lane after one of those vehicles had passed? A. Yes. Q. And then into the third lane? A. Mm mm. Q. Did you move immediately into the second lane after the vehicle had passed? A. Into the second lane yes. Q. You see what I want to put to you is that, that you had consumed quite an amount of alcohol that evening, more than four cans, what do you say to that? A. No. Q. And that you were well affected by alcohol by the time you travelled across Parramatta Road, walked across Parramatta Road, what do you say about that? A. No. Q. That you were unsteady on your feet? A. That was due to my neck, I wasn't - I remember what happened. Q. Do you agree you were unsteady on your [feet] do you? A. Maybe I was a little bit off balance. Q. And that you proceeded from lane one across two and three without looking to your right? A. No. Q. That you proceeded very quickly, what do you say about that? A. I didn't run. Q. Alright well did you jog or how did you travel? A. The lanes are quite small, after I got past the second one I looked unless that time from looking there and then turning around to walk if the car came in that time that's what happened. Q. And that the reason you were in a hurry is you wanted to catch the cab that your friend had flagged down? A. Mm mm. Q. And was getting into at the other side of the road is that right? A. Yes. OBJECTION Q. You were in a hurry to join your friend in the taxi at the other side of the road? A. I wasn't in that much of a hurry that I was going to risk my life. Q. Well if you [were] conscious that there were passages of time when there was traffic proceeding and there was a gap in the traffic, why didn't you wait for the gap? A. Because I looked and there wasn't a car and they're all different lanes and cars go different speeds. Q. You see one of the reasons that you may not have looked to the right was because of your neck is that right? A. I turned my whole body, I was extra cautious I thought." 24 In that last passage counsel for the defendant twice put to the plaintiff that she did not look to the right. That part of the cross-examination was neither lengthy nor successful, but it did put the defendant's case on the point. 25 The defendant's case was again put at the conclusion of the cross-examination: "Q. And madam you see when you moved across lanes two and three your attention was focussed on the cab on the other side of the road wasn't it? A. When I was crossing the road yes, but before I crossed the road I looked, I've got to look straight ahead when I'm walking but I did look. Q. And what you were more concerned about was the traffic travelling the opposite direction on the other side of the carriageway where the cab was? A. No." 26 The independent witness's evidence was quite different from the plaintiff's: "Q. What did you see then. Did she walk, did she run? A. No she, she bolted out from the kerbside which was, had parked cars in it. So she came between two - parked cars, and just went straight out - onto Parramatta Road. Q. Then what happened? A. Well as she - she was, she didn't cross directly, like in a straight line, she crossed diagonally, and so she walked in a diagonal line across. She - one car passed her and then after that car passed her she was looking to the west and walked in front of the car coming on the third lane, which is the middle lane. Q. So when you say looking west, that is in the opposite direction to the vehicle that was travelling and struck her? A. Yes, she was looking the opposite direction." … Q. The car that passed her, how long had it passed her before she proceeded across the lane? A. Well she continued, straight away, there was no - she didn't stop she just walked straight, after that car passed. Q. Did the car pass close to her or did it pass some distance before she moved? A Close to her. Q. Did you make any observations of the demeanour of this lady prior to her being struck by the vehicle? A. Yes I thought she was drunk. Q. Why did you think that? A. Well, the way she was walking, she could hardly walk in a straight line. She was leaning all over the cars that were parked in the kerbside. She didn't actually stand by herself - when she was talking to the other two gentlemen. That's why I was concerned about her when she -- OBJECTION Q. In any event you saw -- A. She seemed to me to be drunk. Q. Those observations, did that cause you … to continue to make observations after that? A. Yes. Q. Do you remember when she moved into lane three, how far away the vehicle was from her that struck her? A. Well she - she walked straight into - it was immediate. HIS HONOUR: Q. She walked straight into -- A. The oncoming car. GRANT: Q. How long had passed before the vehicle in lane two had passed and she was struck by the vehicle in lane three? A. I would say it would be seconds." 27 That evidence in chief indicated that the plaintiff did not look right, towards the defendant's vehicle, only west, in the opposite direction; and she did not stop at any stage from the kerbside to the point of impact. The evidence in chief was not challenged in cross-examination; rather, its accuracy in those respects was accepted in the following series of questions, most of them leading: "Q. When you said that Miss Maclean bolted out from the kerbside, have you ever described it differently to that before? A. By bolted, I mean she, from a stationary point she just suddenly went straight across the road. She went from a stationary point to a quick moving walk. Q. So she was standing still and then she commenced to walk and she kept walking until the time she was struck by the car, is that correct? A. She - it's like when someone has a mission to do something, to get to the other side, they just go - she didn't start off slowly she just completely just, went straight out very quickly. Q. She walked quickly did she? A. Yes she walked quickly. Q. And that's the situation that one moment she was standing at the kerb? A. Yes. Q. And then she commenced walking quickly from the beginning? A. Yes. Q. And then she commenced walking quickly until she was struck? A. Yes. Q. When you say that she crossed diagonally, at what angle do you mean, if you compare it with crossing directly, was it at a slight angle to the direct 90 degrees? A. She started off at a slight angle but went down progressively down that angle. So what she did is, cross the road at - a straight line but at an angle, if you know what I mean. Q. So far as the car that went past Mrs Maclean is concerned, is this how you would describe that. That that car went past her. She watched that car and then she crossed? A. Yes, yes that's right." 28 An overnight adjournment then took place, but the cross-examiner did not return to the subject the following day. These tactics may well have been sound, proceeding from a perception that to exacerbate and highlight a direct collision of credibility between the plaintiff, who had much to gain from the litigation and whose powers of perception and memory might well be held to have been impaired by drink, and an independent sober witness with no tie of blood, affection or interest to either party might, if it was decided against the plaintiff, damage the plaintiff's credibility and her interests in relation to other questions. If that was the tactical approach, it enjoyed success, in view of the trial judge's numerous favourable references to the plaintiff's honesty and fortitude. 29 The trial judge made no explicit finding about whether the plaintiff looked to the right and about whether she paused between the second and third lanes. If she looked, she must have paused, because the condition of her back made it necessary to turn not merely her neck, but her whole torso, which would have made it difficult for her to continue walking quickly. 30 There are indications that the trial judge assumed, or impliedly found, that the plaintiff's evidence was correct.

(a) The trial judge said that had the plaintiff not been affected by drink, "she would in my view have seen that Mr Knight's vehicle was sufficiently close to her intended path to cause her to realise that Mr Knight would have to slow down if she continued crossing". This implies that her failure to appreciate the danger stemmed from the fact that her drunkenness frustrated an attempt to observe the car, rather than from the fact that she did not even try to observe the car.

(b) The trial judge said that the plaintiff's "judgment … was significantly impaired at that time. She quite clearly did not see Mr Knight's vehicle driving down towards that area". This suggests that the reason the plaintiff did not see was that though she looked, her ability to see was impaired significantly.

(c) The trial judge said that the defendant's car "was there to be seen and Miss Maclean did not see it and … she should have seen it, and this failure to accurately observe amounts to a state of affairs which is contributory negligence". The words "failure to accurately observe" suggest an attempt to observe which miscarried, rather than a failure even to attempt observation. 31 On the other hand, there are contrary indications - that is, there are passages in which the trial judge assumed that the time when the defendant ought to have seen the car was the time when she was commencing her journey across the road as distinct from when she was apparently standing between lanes two and three. This flows from the fact that if the plaintiff had stood there and turned to look, it would have been astonishing if the defendant had not seen her.

(a) The trial judge said: "The available cone of vision to a motorist travelling in lane three is a superior one to one of a motorist travelling in lane two as far as observations of pedestrians seeking to cross the road are concerned."

This implies that the defendant was found liable not because he failed to notice the plaintiff almost in front of him, but because he failed to notice the plaintiff commencing her journey from the kerb and moving across lanes one and two. Had the trial judge accepted the plaintiff's evidence that she was stationary between lanes two and three, it would have been possible to find the defendant in breach of duty without worrying about a cone of vision extending to the kerb.

(b) The trial judge said that a reasonable motorist "must drive in anticipation of a pedestrian crossing the road in such a fashion as to enable him to adjust his speed downwards if he and the pedestrian were to continue". This formulation of the duty stresses not the duty of drivers to see what is ahead of them, but the duty of drivers to anticipate what may happen to their sides. 32 Thus there has been no explicit finding about a key aspect of the way the accident happened, and the trial judge appears to have acted on contradictory assumptions about it. This would not matter if the controversy in question was legally irrelevant. But it is not legally irrelevant, because if the plaintiff's evidence were correct, the defendant would have had an opportunity for observation making a finding of negligence much more likely. 33 The failure of the trial judge to confront and explicitly resolve the conflict between the evidence of the plaintiff and the evidence of the independent witness might ordinarily call for an order that there be a new trial. Here, however, the failure of counsel for the plaintiff to cross-examine the independent witness by endeavouring to obtain concessions to the contrary of the independent witness's evidence in chief and consistent with the plaintiff's evidence is significant. It is even more significant that the leading questions in cross-examination of counsel for the plaintiff assumed the accuracy of the independent witness's evidence in chief and the incorrectness of the plaintiff's evidence, as if there were no issue on the point. It cannot be assumed that the independent witness had been in court during the plaintiff's evidence, or that she was on notice of it. In these circumstances, if the issue whether the plaintiff stopped and looked between lanes two and three were alive, the rule in Browne v Dunn (1893) 6 R 67 was not complied with. Two courses were validly open to the trial judge. 34 One course was to say that counsel for the plaintiff must be taken to have accepted the independent witness's version and would not be permitted to address in a fashion which asked the court not to accept it: Reid v Kerr (1974) 9 SASR 367 at 375; Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 at 236. In the latter case Mahoney JA said: "Where, in a civil case, a witness is not cross-examined, it may normally be assumed that the evidence of that witness is not in contest. Therefore … in such a case a party who has not cross-examined a witness will not normally be entitled to submit in address that the witness's evidence should not be accepted. But the circumstances of the particular case may negative such an assumption. Whether it is right to make such an assumption will depend upon, for example, whether counsel has at the time, given an adequate reason for not cross-examining the witness or otherwise made it clear that it is not a proper case in which to make that assumption … . It may be that the witness's evidence is fanciful or such as not to warrant cross-examination … or that cross-examination is foregone for other adequate reasons, for example, delicacy … . Similarly, failure to cross-examine a witness may not found such an assumption or render the course of the trial unfair if it is clear from the manner in which generally the case has been conducted that his evidence will be contested … . The nature of the defendant's case and the particulars given, and otherwise the conduct of it, may make it sufficiently clear that such an assumption is unwarranted and that there has been no surprise or prejudice concerning the matter."

None of these circumstances apply here to negative an assumption flowing from the cross-examination of the independent witness that her evidence in chief was not in contest. No reason has been given for the absence of cross-examination. No reason has been given for concluding that the case was not a proper one to make that assumption. The independent witness may have been wrong, but her evidence was not fanciful and was not otherwise of a kind not warranting cross-examination. It cannot be said that there was any other adequate reason for not cross-examining such as delicacy. 35 The other course open to the trial judge was to accept the independent witness's evidence. He was not obliged to do this, particularly since the plaintiff contradicted it, but it would not have been unreasonable to do so. In Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419 at 426 Hope and Glass JJA said: "A tribunal of fact may, and indeed generally should, have regard, in deciding what its findings of fact should be, to the failure of a party to cross-examine his adversary upon evidence which the adversary has given to satisfy the onus which lies upon him. As Browne v Dunn shows, it may be wrong in many cases for a party to suggest that the other party's evidence should not be accepted, if there has been no relevant cross-examination; and, if a tribunal of fact rejects that evidence in those circumstances, the result may be a wrong finding of fact, or, to use other language, an unreasonable … or even a perverse finding of fact." 36 Whichever course the trial judge should have adopted, the independent witness's version of events would have remained in possession of the field. The trial judge appears to have assumed its correctness in the passages which were central to his conclusions on liability. 37 In these circumstances the defendant's contentions in this Court about the alleged defects in the trial judge's process of fact-finding need not be resolved. The trial judge operated on the basis that the plaintiff walked quickly, as she and the independent witness said, rather than ran, as the defendant said in his second statement but did not say in his first statement. The trial judge also operated on the basis, at least in the passages central to his findings on liability, that the plaintiff did not stop at the intersection of the second and third lanes. Counsel for the plaintiff appeared content to have the trial conducted on that basis.

Did the car in the second lane obscure the plaintiff from the defendant? 38 On the appeal it was common ground that the plaintiff and the independent witness were correct in saying that the car in lane two passed before the plaintiff crossed the road. That is, she walked behind it and not in front of it. But counsel for the defendant contended several times that the defendant's opportunities of seeing the plaintiff as she moved across the second lane towards the third lane were diminished because she did so immediately after the car in the second lane passed, as the independent witness said, so that it "could have obscured" the defendant's vision of the plaintiff. Counsel for the defendant made the point another way by saying that the plaintiff was "partially obscured by a vehicle in the second lane". Neither the independent witness nor the plaintiff gave direct evidence about this, and probably they could not have done so admissibly. The best evidence on the point would have been the sworn evidence of the defendant, but he gave none because of his death just before the trial. However, in his first statement he did not offer as an excuse or explanation for the accident the proposition that he only saw the plaintiff at the last moment because his vision had been masked by the passage of the car in the second lane. He gave no excuse or explanation. Counsel for the defendant submitted, and it is not an unreasonable submission, that in the difficult circumstances after the accident, with a police officer attempting to get the basic facts quickly while no doubt concerned with other aspects of the aftermath and probably other duties, no inference should be drawn from any incompleteness in the statement. In the second and much longer statement, made about six months later on audio tape in the course of a twenty minute interview, however, the defendant twice said that the plaintiff came across in front of the car in the second lane, which was a car length ahead of the plaintiff's car. He said: "Q33. How far away were you from the pedestrian when your first saw her? A. About a car length. Q34. What was she doing at that time? A. Running across the road. Q35. Which direction was she running? A. North. Q36. I take it from that she was coming from your side of the road? A. That's right. Q37. What happened? A. Well there was a car in the centre lane just in front of me, I was a car length behind that car and I noticed he'd hit the brakes and as soon as he hit the brakes I saw this person come from in front of me when I was, I suppose I would have had about one and a half car lengths to stop. That's about where I collided with this person coming across the road, I didn't see her until such time she was almost coming out from in front of the car. It was next to me like just in front of me in the centre lane. Q38. What about traffic in the kerbside lane? A. I don't recall what was in the kerbside lane, could have been parked cars or something, I don't know, I just don't recall what was there. Q39. Were you able to take any evasive action when you saw the girl? A. Well all I could do, it happened that quick, I hit the brakes straight away. Q40. What speed would you say you were still doing at the time of the actual collision? A. 15 to 20 I suppose, it's just a guess, as I say it happened that quick I didn't have time to think. Q41. Did your vehicle stop in a straight line? A. Yes. Q42. How far after the impact would it have been that you stopped? A. After the impact oh practically straight away, almost straight away. Q43. Would you describe the pedestrian, including the colour of her clothing? A. No I can't recall the colour of the clothing, I think she was … what appeared to you know in the darkness she appeared to be a redhead and … Q44. How old would you say she was? A. I'd say somewhere in the vicinity of thirty. Q45. Just to go back through what you've told me, you were driving in the median strip lane, she ran from in front of a car in the centre lane into the path of your car? A. Yes."

He also said repeatedly that the plaintiff ran across the road. 39 With all respect to the defendant, his second statement offers a double explanation of the accident which exculpated him and inculpated the plaintiff in two respects which counsel for the defendant will not now support: that the plaintiff was running rather than walking quickly, and that she ran in front of the car in the second lane. Counsel for the defendant, because of his placing of the independent witness on an irrefragable peak of reliability, has accordingly abandoned what would be the best excuse for the defendant and falls back on a more questionable excuse never in fact advanced by the defendant, having no other specific evidentiary support, and having very little evidentiary support at all. The defendant did say that he had a "clear view straight in front of me but not to the side because of other traffic". For reasons to be developed below, it is arguable that he only had to look a little to the left to keep a lookout against dangers from pedestrians. For significant periods of time, what the defendant said about the side view may be correct. It is not clear that it is correct in relation to the particular vehicle in the second lane. Whether the proposition that the "obscuring" of the plaintiff by the vehicle in the second lane prevents a relevant duty arising or prevents it from being breached was advanced to the trial judge is unclear since he does not mention it. In any event, the proposition does not have sufficient evidentiary weight to be accepted.

The arguments of counsel for the defendant on the standard of care 40 The arguments of counsel for the defendant on the standard of care which the judge imposed attacked the following passage: "[The reasonable motorist on Parramatta Road] must drive in anticipation of a pedestrian crossing the road in such a fashion as to require him to adjust his speed downwards if he and the pedestrian were to continue. I am satisfied that there was a significant lack of observation by [the defendant] on the evening in question and that had [the defendant] been observant he would have seen the pedestrian significantly before he did and been able to sharply reduce his speed to one that would avoid a collision or minimise the effect of it."

He said that the duty of a driver to anticipate pedestrians only arises if the driver was put on notice that something unusual might happen so that his speed was reduced to the necessary extent. The primary duty of a driver was to concentrate on what was happening to his front, and concentration on what could happen to either side was only called for if some circumstance made it appropriate. The defendant relied on a passage in the Full Court decision of Trompp v Liddle (1941) 41 SR (NSW) 108 at 109 which is binding on this Court. The passage, modified by counsel for the defendant to the present circumstances, was: "A driver is entitled to assume that [pedestrians] will observe the rules of the road. This does not mean that he may drive at any pace he chooses so far as [pedestrians] coming in on his left are concerned, or with complete indifference to the possibility of a [pedestrian] suddenly emerging from the side … as the result of accident, miscalculation, ignorance or carelessness. It means that it is not unreasonable for him to act on the assumption that [pedestrians] are obeying the rules unless there is something which should make him realise that they are not."

Counsel also relied on Davies AJA's dissenting judgment in this Court which was upheld by the High Court in Derrick v Cheung (2001) 181 ALR 301 at [10], which pointed to the relevance of the question whether there was a "particular perceivable risk". The relevant notice might come from the fact that there was a pedestrian crossing, from the fact that there were lights (whether or not they favoured motor traffic eg Yu v Yu (1996) 26 MVR 509); from the fact that a vehicle was passing a school or hospital; from the fact that there were children playing near the road; or from the fact that a vehicle was passing a bus stop. The fact that Parramatta Road was busy was not enough. Nor was the trial judge's reference to Parramatta Road intersecting with Palace Street. That intersection was not a true intersection in the sense of a crossroad; it was only a T-junction out of which cars could turn left. In any event, though the accident happened close by (twenty metres away) it did not happen at that point. 41 Finally, counsel for the defendant argued that the mere possibility that if the defendant had been driving more slowly he would have been able to slow to a stop instead of slowing from 60 kilometres an hour to 15-20 kilometres an hour did not demonstrate negligence: Derrick v Cheung at [13].

The argument for liability 42 The argument supporting the conclusion to which the trial judge came would depend on the following steps. 43 The law recognises that "the road is not the exclusive preserve of the motorist. The pedestrian has a right of passage to be exercised, of course, as is that of the motorist, reasonably": Purcell v Watson (1979) 26 ALR 235 at 237 per Barwick CJ. 44 While a legal regime in which defendants were always entitled to assume that other persons would behave lawfully, and in particular carefully, would not be irrational, that regime does not correspond with the current law. A driver is not entitled to drive "on the assumption that other users of the road, whether drivers or pedestrians, will behave with reasonable care". That is because: "It is common experience that many do not. A driver is not, of course, bound to anticipate folly in all its forms, but he is not … entitled to put out of consideration the teachings of experience as to the form those follies commonly take": London Passenger Transport Board v Upson [1949] AC 155 at 173 per Lord Uthwatt. "[A] prudent man will guard against the possible negligence of others when experience shows such negligence to be common": Grant v Sun Shipping Co Ltd [1948] AC 549 at 567 per Lord du Parcq. "The assumption that other users of the highway will act reasonably and safely is so often falsified that it cannot be said as a general rule that a user of the highway can reasonably act on that assumption": Purcell v Watson (1979) 26 ALR 235 at 240 per Gibbs CJ. 45 It is a common experience for motorists to see pedestrians moving across roads dangerously, either relying on their fleet-footedness and self-perceived sense of timing, or being oblivious to the dangers of the traffic. Negligence in motorists is not negated by the fact that pedestrians "could avoid the possibility of injury by taking due care … the reasonable man does not assume that others will always take due care; he must recognise that there will be occasions when others are distracted by emergency or some other cause from giving sufficient attention to their own safety": Webb v State of South Australia (1982) 43 ALR 465 at 467 per Mason, Brennan and Deane JJ. 46 The possibility of a pedestrian darting out into the traffic at the point where this accident occurred was one which a reasonable man ought to have foreseen in consequence of the following factual circumstances. 47 First, as the trial judge said, Parramatta Road is a road on which there are restaurants and small businesses, and the streets adjoining it contain many residential streets. The photographs of the area tendered in evidence, though not tendered for this purpose, incidentally reveal that in the specific locality of the accident there was a hotel and a fast food outlet. 48 Secondly, there was evidence that Parramatta Road runs parallel to a busy suburban railway line, three stations of which were within walking distance of Parramatta Road, namely Stanmore, Petersham and Lewisham. Petersham Station was directly south of the place of the accident and only a short distance away. 49 Thirdly, at 9.10pm a quantity of vehicular and pedestrian traffic could be expected, including people seeking to cross Parramatta Road in order to go to or leave any restaurants, hotels and businesses which were open, or to move from their residences to a station or vice versa. The urgency of the desires which pedestrians might have to cross was affected by the fact that, as the plaintiff and the independent witness said, the traffic came in surges: at times there would be no cars on Parramatta Road, and then groups of cars would arrive as the lights changed at Norton Street, a little to the east of the point of impact. 50 Fourthly, there was no convenient point at which the plaintiff could cross the road nearby - no traffic lights or zebra crossing. 51 Fifthly, the plaintiff attempted to cross the road twenty metres from the T-junction with Palace Street. Though there were not crossroads at that point, it was a location which might encourage a pedestrian to attempt a crossing. It was also a location at which a driver might expect pedestrians to emerge, having come down Palace Street from their residences or those of their friends in that street or in streets feeding into it (as the plaintiff had), or from Petersham Station a short distance away. 52 Sixthly, since Parramatta Road was a busy road at 9.10pm, and since it was six lanes wide, the enterprise of crossing it on foot at a point not near any pedestrian crossing or lights was one which pedestrians would be likely to attempt at some speed; that is, it was likely that they might move quickly and relatively suddenly from the kerb with a view to crossing the road. 53 Seventhly, there is no evidence that the cars parked at the side of the road were anything other than ordinary sedan cars - there was no evidence that there were any trucks or four-wheel drives. The plaintiff called them "cars" and so did the independent witness. The defendant could not remember what was in lane one. There is evidence that the plaintiff was nearly 29 and was 162 centimetres in height. It may be inferred that at least her head was visible to drivers on Parramatta Road looking in her direction even at times when she was, from the point of vision of drivers moving west, behind the cars parked at the side of Parramatta Road. 54 Eighthly, while pedestrians can be very difficult to see at night, particularly if they wear dark clothing and the relevant area is dark or ill lit, that was not the case here. Not only was the plaintiff's head likely to have been visible above the parked cars, but as she moved out from behind them, her clothing was likely to have made her visible in the reasonable lighting of the location. She was wearing light blue denim jeans, a long pale pink jumper going down to the wrists, and Reebok sandshoes coloured white with stripes. 55 Ninthly, the defendant had lived at Rydalmere since 1952. He had been driving for 52-55 years. He held a heavy vehicle driver's licence. The direct route from Rydalmere to central Sydney is along Parramatta Road, and the defendant had taken it that day to enable someone to catch a train to Melbourne at Central Railway Station. In his second statement he said that the normal traffic conditions at that time of the day on Parramatta Road were that the traffic was medium. This implied considerable familiarity with conditions on Parramatta Road at all times of the day, and certainly at the time of the day when the accident occurred. It may be inferred that the defendant had driven along Parramatta Road many times in his life. 56 Tenthly, certain difficulties in the defendant's position emerge from his second statement. The trial judge noted two of them, but there are more.

(a) The initial statement said the plaintiff was walking; the latter statement said she was running.

(b) The initial statement said nothing about the defendant's view being obscured by a second car; the latter statement said his view was obscured by the car in lane two because the plaintiff ran in front of it.

(c) A third difficulty is that in the initial statement the defendant said that when he "was about 20 metres west of the intersection of Palace St, Petersham" the plaintiff walked in front of him. But in the latter statement he said the accident took place fifteen metres "before you reach Palace Street", ie on the eastern side of it. The police diagram confirmed the latter position to be correct, and the trial judge so found. No doubt this was only a slip, but it bears on the defendant's reliability.

(d) A fourth difficulty is that the defendant was unable to recall what was in the kerbside lane. This may suggest that he was not keeping a proper lookout to the left ahead of him as he approached Palace Street. That supports the trial judge's finding that "there was a significant lack of observation" by the defendant. It also supports his finding that had he been "observant he would have seen the pedestrian significantly before he did and been able to sharply reduce his speed … ."

(e) A fifth difficulty is that in the later statement the defendant said that the car in lane two was "just in front of me, I was a car length behind that car;" the plaintiff then ran in front of that car, giving the defendant one and one half car lengths to stop; he saw her when he was one car length away. This picture of the accident favours the defendant's interests since it portrays him as having no opportunity to avoid the accident. Yet it must be radically wrong, at least in point of detail. One respect in which it is wrong is that it is now common ground that the plaintiff did not run in front of a car in lane two, but behind it. That casts doubt on the proposition that that car braked, a proposition to which the independent witness gave no support. If the defendant was one car length behind that car, he had only one car length in which to stop, not one and one half car lengths. The difficulty is that if he was driving, as he said, at 60 kilometres per hour, he was travelling at 16.7 metres per second. If a car length is assumed to be about four or five metres, he had about one-third of a second in which to stop. He failed to stop, but said that he did reduce his speed from 60 to 15-20 kilometres per hour by the time of the collision, and after the collision stopped almost straight away. It is necessary to allow the period of time within which the defendant perceived the problem, decided what to do, and carried out that which he decided to do. Since he decided to apply the brakes, that period of time would end when the brakes locked. If that time had been one second, he would have travelled 16.7 metres; if it had been two seconds, he would have travelled 33.4 metres. It is commonly thought that the reaction time of a driver varies depending on the driver's age, the extent to which the driver is under the influence of drugs (including alcohol), the driver's tiredness, the driver's health and state of mind, the driver's experience and skill, and the road and traffic conditions. But even in cases where, unlike the present case, expert evidence is called, it is very difficult to estimate what a particular driver's reaction time in particular conditions is. If the defendant was travelling at 60 kilometres per hour and reduced his speed by braking to 15-20 kilometres per hour, it is probable that he was not one car length or one and a half car lengths from the plaintiff when he saw her, but well over 34 metres away, assuming a two second reaction time, depending on the efficiency of his brakes, and on the accuracy of his estimate that he had slowed to 15-20 kilometres per hour. A reasonable person in his position, it might be argued, would have driven at a speed which allowed for his probable slow reaction time. That allowance would itself contain a safety margin above the 34 metres which would be travelled at 60 kilometres per hour. With that allowance (including the safety margin) the accident could have been avoided. Another point is that even though any precise calculations based on speeds, distances and braking must depend on assumptions which it is very hard to have confidence about, the defendant was much further from the plaintiff when he first saw her than one or one and a half car lengths. That in turn suggests that the "cone" of observation relevant to the plaintiff was not directed sharply to the side, but almost straight ahead. The plaintiff would have emerged almost in front of the defendant, probably more than 40 metres away. The commencement of her journey from the edge of lane one was not almost at right angles to the defendant, but almost straight ahead of the defendant. The arguments of counsel for the defendant sometimes presented the factual position as requiring the defendant to look almost at right angles to the left, but that is not so. 57 The argument for the plaintiff relied on Sibley v Cais (1967) 118 CLR 424 at 427. The High Court said that their approach in that case was not inconsistent with Trompp v Liddle. The High Court said: "The obligation of each driver of two vehicles approaching an intersection is to take reasonable care. What amounts to 'reasonable care' is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or from his left in such a fashion that, if both vehicles continued, a collision may reasonably be expected."

Applied to pedestrians, that means that reasonable care requires a driver as he approaches an intersection or place where it is reasonably foreseeable that pedestrians may encroach on the road from either side to keep his vehicle so far in hand that he can bring it to a halt or otherwise avoid an impact where it may reasonably be concluded that if this is not done the converging paths of vehicle and pedestrian are such that a collision may be expected. In short, the defendant here could not drive with indifference to the possibility that pedestrians might move quickly out from behind parked cars at the particular location of the accident. 58 Counsel for the defendant protested that this outcome was unrealistic to the point of absurdity on the ground that if it were sound, it would be true at every point of Parramatta Road, which is 24 kilometres long. Three answers could be advanced to the argument. The first is that there is no explicit evidence of the uniformity of Parramatta Road throughout its entire length. The second is that an appeal by counsel to the results of common observation is open to the retort that in fact the character of Parramatta Road between Petersham and Leichhardt is not the same as its character further west, or further east. The third is that even if the character is identical throughout, there is no reason why the duty in question should not exist throughout. 59 Finally, the plaintiff's argument would stress that the matter of which notice is necessary before drivers are to be found in breach of care need not be actual illegality - only the possibility of it. Many children play on pavements without actually going onto the road: it is the fact that they may which creates a duty. Similarly, it was not necessary for the defendant to see other pedestrians actually attempting to cross the road in a risky fashion. 60 In all the circumstances, it might be argued for the plaintiff, while a primary duty of drivers was to attend to the traffic in front of them, they had other duties at the location of the accident: to be conscious of cars passing them and the past and likely future manoeuvres of those cars; to watch out for traffic coming from the left, though not from the right, at least on those parts of Parramatta Road which, like the relevant part, had a raised median strip preventing traffic coming from the right; and to take reasonable care not to hit pedestrians.

Conclusion on liability 61 It is tempting but erroneous to compare closely the facts of cases decided in the past with the facts of the case calling for decision. In Tidy v Battman [1934] 1 KB 319 at 322 Lord Wright said: "It is unfortunate that questions which are questions of fact alone should be confused by importing into them as principles of law a course of reasoning which has no doubt properly been applied in deciding other cases on other sets of facts." In Teubner v Humble (1963) 108 CLR 491 at 503 Windeyer J said: "decisions on the facts of one case do not really aid the determination of another case. Observations made by judges in the course of deciding issues of fact ought not to be treated as laying down rules of law. Reports should not be ransacked and sentences apt to the facts of one case extracted from their context and treated as propositions of universal application that a pedestrian is always entitled, or that a motorist is always obliged, to act in some particular way. That would lead to the substitution of a number of rigid and particular criteria for the essential flexible and general concept of negligence." 62 However, the arguments for the plaintiff take insufficient account of the principles applied by the High Court in Derrick v Cheung (2001) 181 ALR 301, as distinct from the precise facts of that case. In that case the trial judge and the majority of the Court of Appeal found a driver negligent when the driver collided with the plaintiff, a small child who had darted out between parked cars. The High Court reversed that finding. In Derrick v Cheung it was reasonably foreseeable, in the sense that it was a possibility, that a small child might be on or near the road. The trial judge found that the location (near shops and houses) and time (9am on Saturday 17 December, shortly before Christmas) "should have alerted [the defendant] to the possibility that a small child such as [the plaintiff] might be on or near the road". 63 In approving Davies AJA's dissenting judgment in the Court of Appeal, the High Court was approving his approach. He said (at [10]): "there was no particular perceivable risk which the appellant should have taken into account but did not. She drove with other cars at a modest speed, 45-50 km per hour, keeping an appropriate distance between her vehicle and the vehicle in front and keeping a proper lookout. The appellant's driving was appropriate in the circumstances. For the appellant to keep up with the general flow of the traffic, when the traffic was travelling at a modest speed, well under the speed limit, and when there was no particular danger observable, was both a reasonable and a proper response to the traffic conditions on the day. For the appellant to have dawdled along Victoria Avenue when no particular danger was apparent would not have been appropriate for it could have caused disruption." 64 That approach in part centred on the fact that though the appearance of a child may have been reasonably foreseeable, there was "no particular perceivable risk which the [defendant] should have taken into account but did not", "no particular danger was observable", and "no particular danger was apparent". In this case, too, the movement of pedestrians at some speed across the road was reasonably foreseeable, but the appearance of the plaintiff at a fast walk was not a particular risk or danger which was perceivable, observable or apparent. 65 Another theme in the reasoning of Davies AJA was the fact that the defendant's driving satisfied conventional criteria for safe driving - a modest speed, a keeping up with the general flow of traffic which was itself at a modest speed, the maintenance of a reasonable distance from the vehicle in front, and the keeping of a proper lookout. The High Court in effect held that a proper lookout was being kept despite the defendant's concentration on looking straight ahead and on failing to realise that the view to her left was obscured, with consequential effects on her ability to see the plaintiff in that case emerging through the row of parked cars adjoining the lane which the defendant was driving along. 66 So here, the defendant's driving was intrinsically careful. He was not exceeding the speed limit; he was moving with the traffic flow; there is no suggestion he was not keeping a proper distance from the car in front; if he did not see the start of the plaintiff's journey through a failure to look to the left, or a failure to appreciate the extent to which his view might be blocked, he was in no worse a position than the defendant in Derrick v Cheung, and indeed in a better position because of the existence of lane two to his left. He was entitled to drive with his eyes ahead of him until he noticed something to the left which called for greater concentration on the left. There was nothing on the left calling for greater concentration until the sudden emergence of the plaintiff, and that was too late to give the defendant any opportunity to avoid the collision. A finding that the defendant was liable would be to create a form of strict liability, not to recognise a form of liability in negligence. 67 The trial judge's conclusion of liability in this case rested on the proposition that the defendant was obliged to "drive in anticipation of a pedestrian crossing the road in such a fashion as to require him to adjust his speed downwards if he and the pedestrian were to continue". That would have called for a very low speed indeed. Indeed, if the defendant was obliged to drive in anticipation of the emergence of pedestrians like the plaintiff at a fast walk, he would also have been obliged to drive in anticipation of pedestrians emerging at a run, which would call for a lower speed still. Speeds of such slowness are incompatible with the reasonable use by motorists of Parramatta Road, which is a substantial highway between the centre of the city of Sydney and the city of Parramatta. 68 It is not the law that a driver complying with the minimum requirements of the law of negligence must drive in such a way as to anticipate everything that a pedestrian might do at all stages of every journey, or to be in a position to reduce speed to levels which will avoid any risk of a collision at all stages of any journey. Yet in the circumstances of the present case the trial judge's test would entail that duty. 69 The plaintiff bore the burden of proving negligence on the part of the defendant. This meant that in substance the plaintiff bore the burden of proving that the defendant failed to keep a proper lookout and of proving that if he had kept a proper lookout, he would have seen the plaintiff in sufficient time to avoid the collision. These burdens could not be discharged by the mere fact of the collision. To the extent that the nature of the locality at the time of the accident called on the defendant for an explanation as a practical matter, an acceptable explanation consistent with keeping a proper lookout, for the defendant seeing the plaintiff only at the last moment may be inferred from the circumstances. The circumstances supporting that inference include the absence of anything in particular to put the defendant on notice of the need to guard against pedestrians suddenly crossing the road, the nature of Parramatta Road as a busy main road calling for close attention to the behaviour of vehicles in front, and the character and speed of the defendant's driving, in relation to other vehicles, as appropriate to the traffic conditions. 70 Accordingly the trial judge imposed too high a standard of care on the defendant, and the appeal succeeds on that point.

Contributory negligence 71 In view of the conclusion just reached about liability it is unnecessary to deal with the trial judge's reasoning on contributory negligence.

The trial judge's orders are set aside, and in lieu thereof there is a verdict for the defendant.

The respondent is to pay the appellant's costs of the trial and of the appeal.

The respondent is to have a certificate under the Suitors Fund Act 1951 if qualified. 73 YOUNG CJ in EQ: I have read the reasons of Heydon JA in draft and agree with them. 74 I should, however, point out that serious procedural irregularities occurred in this case. The defendant died before the trial in the District Court. This meant that orders should have been made under Part 7(10) of the District Court Rules as to the further conduct of the proceedings. 75 I appreciate that, as a practical matter the defendant's insurer was the person affected by the plaintiff's claim. Experience shows that even in this situation, it is usually wise for the procedural rules to be followed.

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Cases Cited (8)