MA v KEANE [2003] NSWCA 50 | Case summary

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

For those reasons his Honour found no negligence. 13 Counsel for the appellant in written submissions relied upon a number of matters including the lighting as to its effect upon the plaintiff's ability to see the respondent's car, the evidence of Mr Southward that the plaintiff was proceeding in "a sort of jog to the middle of the road", which led him to say to the defendant "Watch there's someone on there". He saw the plaintiff hesitate and then keep going cross the road. The defendant described the plaintiff getting to the centre of the road as a "pause". 14 It was urged that the defendant made no allowance for the plaintiff's position on the road even though she knew the plaintiff was intending to cross her carriageway. "The defendant appears to have blithely assumed that from her experience in her own residential street, the plaintiff would await her passing." 15 According to the defendant's evidence, when the plaintiff moved on to her carriageway she was ten to fifteen metres from the defendant and had moved up to one and a half metres into her carriageway. Notwithstanding this, the defendant had to take evasive action after the plaintiff was in her carriageway by veering to the left and applying her brakes fully. 16 It was submitted that this indicted that the defendant acted too late to avoid the accident. It was said that this occurred against a backdrop of her desire to get to a hotel pool game which had started at least forty-five minutes previously. 17 The plaintiff relied upon Stocks v Baldwin and Schieb v Abbott (1998) 27 MVR 107, where reference is made to the motorist driving at a lawful pace who is put on notice by conduct that the pedestrian might act so as to put the pedestrian in danger. It was submitted that if the defendant had taken some action to recognise the plaintiff's presence at the centre of the road the plaintiff's injuries should have been reduced or avoid altogether. 18 In his oral submissions today Mr Hewitt SC, for the appellant, emphasised the evidence that the plaintiff was walking fast. Mr Southward had described it as a jog. There was some evidence where the expression was used "really really fast". Secondly, it was emphasised that she was not in the middle of the road for long, she paused, stopped, then kept going. It was emphasised that the defendant had seen the plaintiff from the time she left the kerb on the other side of the road and walked towards the centre. 19 Three things, it was said, could have been done. First, the defendant might have sounded her horn, secondly, it was said that she might have moved over to the left side of the road, thirdly, it was said that she could have slowed down perhaps to ten or fifteen kilometres per hour. 20 The argument was put that it was foreseeable that the plaintiff might act in an unpredictable way and a collision could have readily been avoided, so it was submitted, by the steps suggested. 21 During the course of argument, reference was made to some remarks of McHugh JA in Tame v New South Wales (2002) 76 ALJR 1348 at 1368. In that passage McHugh JA emphasised the importance in considering the common law doctrine of negligence to take into account all reasonable conduct. His Honour said: "To repudiate it also ignores the right of citizens in a free society not to have their freedom of action and communication unreasonably burdened. Most motor vehicle accidents could be avoided if cars were driving at a speed less than 10 km per hour. But to impose such a standard of care on drivers would unreasonably hamper the speed of travel, increase the congestion on the roads and burden the economy with unnecessary increases in the cost of transporting goods and persons." 22 When considering the three ways in which Mr Hewitt said this accident might have been avoided by the defendant, I think it important to bear in mind that passage from the judgment of McHugh JA. 23 We were referred to a number of cases but it seems to me that those cases fall within the category of some act or behaviour of a plaintiff observed by the driver of the vehicle or one who has been observed by the driver of the vehicle and alerted the driver of the vehicle to take particular steps in terms of reducing speed or otherwise. 24 The critical thing, in my opinion, in the present case is that there is nothing unusual observed about the behaviour of the plaintiff. She walked, perhaps she walked quickly, across the road. When she came to the centre she stopped. She then looked at the defendant's car. It seems to me that it was quite a reasonable expectation by the defendant that the plaintiff had stopped to allow the vehicle to pass. The case then falls into the category which was described by Priestley JA in Tsuji v. Metromix Pty Limited (1998) 28 MVR 401 at 404 where a driver is suddenly confronted with a pedestrian whom the driver had no prior reason to think might suddenly step in front of the vehicle. His Honour remarked that in that category of case, depending on the precise facts, drivers are frequently found not to have been relevantly negligent. 25 Mr Hewitt stressed that the plaintiff had left the kerb side and was crossing the road and said that she was doing so in a hurried fashion and had not, so it was submitted, apparently noticed the defendant's vehicle. Mr Hewitt conceded, as I understood his argument, that if it was accepted that the defendant had not acted unreasonably in the way she reacted to the circumstance of the defendant walking across the road to the centre point it could not be said that she had reacted unreasonably when the plaintiff stopped and looked at her vehicle. 26 In the written submissions the defendant submitted that the plaintiff had not discharged the civil onus of proof to establish breach of duty. The defendant had acted and reacted in a difficult situation. It was at least reasonable for the defendant driver to conclude that the plaintiff, who had stopped and who was looking straight at her vehicle, was fully aware of the presence of the car and had stopped to wait to permit the vehicle to proceed. The defendant did not ignore the presence of the plaintiff or the risk of an accident but responded appropriately. She was driving at a modest speed below the speed limit. She maintained a proper lookout throughout. Her headlights were pretty good. She satisfied herself that the pedestrian, who was not in her laneway, had stopped to let her pass. Once the plaintiff was only about ten to fifteen metres in front of where the defendant was seated in her car, the plaintiff, unannounced, walked "really really fast almost like a run" into the defendant's laneway and proceeded about a metre to a metre and a half. Despite the suddenness of this, the defendant braked and veered the car so that the plaintiff hit the driver's side of the car towards the front quarter panel. The defendant stopped promptly. 27 It was submitted by the defendant that there was no evidence that required the trial Judge to find the driver could reasonably have been required to do more than she did, or that thereby the collision - such as there was - could have been avoided. The possibility of a different result is not the issue and does not represent the proper test of negligence. The defendant submitted that it was not the duty of a reasonable driver to drive such that there was no foreseeable risk of injury to others. There were limits to the extent to which irrational behaviour of pedestrians, in apparent disregard for their own safety, should reasonably be anticipated by a reasonably careful driver. The defendant was suddenly confronted with a pedestrian whom she reasonably thought would not suddenly step in front of her vehicle. The plaintiff did not appear drunk, blind or crippled, or behaving recklessly until the final moment. The driver is entitled to take into account that persons with the appearance of normal adults will take normal precautions for their own safety unless there is something to indicate the contrary. The trial Judge applied the appropriate principles. 28 I am not persuaded that there is any error in the trial Judge's conclusion that the defendant was not negligent. The defendant was, in the circumstances, driving at an appropriate speed. She saw the plaintiff. She saw the plaintiff stop before she entered the side of the carriageway in which the defendant was travelling. She saw the defendant look at her vehicle which was a short distance away. It was a reasonable expectation that the plaintiff, appearing to be a normal adult, would take normal precautions for her own safety and not step out in front of the defendant's approaching car. Contrary to any reasonable expectation in the circumstances, the plaintiff did step out in front of the defendant's car. The defendant then took reasonable steps to avoid a collision by braking and swerving. Even so, the plaintiff walked into the driver's side of the defendant's car towards the front quarter panel at about where the headlight extends around the side. 29 In my opinion, the trial Judge correctly held that the plaintiff had not established that the defendant was negligent. The appeal should be dismissed with costs. 30 SANTOW JA: I agree. I wish to add only this: Mr Hewitt SC in oral argument was faced with this difficulty: the plaintiff had stopped her crossing at the centre of the road and looked in the direction of the car. At that point it could not be reasonably foreseeable that she would then restart her crossing at a fast pace which in fact she did, with the collision that resulted. 31 Mr Hewitt attempted to escape the difficulty that this entailed for his case. He did so by directing attention to the plaintiff's position at an earlier point of time. This was when she was at the kerb, or the moment just after, when she commenced her crossing that she was then to interrupt. His proposition was that it was inevitable (or highly probable) that unless the driver took immediate avoidance action (as she should have but didn't) the accident was bound to occur. The risk of that accident was (it was submitted) reasonably foreseeable. It was said to be nothing to the point that the accident that did occur was after she had stopped and looked at the car, then restarted her crossing. I shall refer to this argument as "the substituted reasonable foreseeability proposition". 32 There was, however no evidence, expert or otherwise, sufficient to establish that the accident was inevitable or highly probable at the point when she stepped from the kerb in the absence of immediate avoidance action by the Respondent driver. The risk not reasonably foreseeable which did eventuate, namely that she would pause, look at the car and then continue her crossing, was distinct from the risk which Mr Hewitt invited us to consider. The latter risk, said to be reasonably foreseeable, was that a pedestrian at the point when she steps down from the curb would continue her progress to the other side, notwithstanding the Respondent's car. 33 The answer to the Appellant's argument is threefold. First, what I call the substituted reasonable foreseeability proposition is irrelevant, even if correct, to the events that actually happened. The Appellant did not continue her progress, but paused and looked in the direction of the car. One is not liable for the reasonably foreseeable outcome of events significantly different from those that occurred. 34 Second, the substituted reasonable foreseeability proposition is not supported by evidence sufficient to make it out. 35 Third, the Appellant's stopping in the middle of the road then looking at the car, then re-commencing her crossing were all voluntary acts on her part which broke the chain of causation for purposes of any liability in negligence. 36 GZELL J: I agree with the reasons and orders proposed by Sheller JA. 37 SHELLER JA: The order of the Court is that the appeal is dismissed with costs. **********

MA v KEANE

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