MARKABOUI v. GARDNER [2005] NSWSC 648

Derrick v. Cheung (2001) 181 ALR 301 Sibley v. Kais (1968-69) 118 CLR 424 Knight v. MacLean [2002] NSWCA 314 Martin v. Reda (2004) 41 MVR 421 CASES CITED : Stocks v. Baldwin (1996) 45 MVR 416 Yu v. Yu (1996) 26 MVR 509 Clarke v. Freund (1999) 29 MVR 361 Cook v. Hawes (2002) 35 MVR 391 GIO v. Ergul (1993) 18 MVR 339

Fauadi MARKABOUI PARTIES : v. Andrew GARDNER

Plaintiff: P. Menzies, QC./R. Wood/S. Kerrigan COUNSEL : Defendant: R.R. Bartlett, SC.

Plaintiff: Maloufs SOLICITORS : Defendant: Sparke Helmore

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Liability 1 These proceedings were originally instituted in the District Court by statement of claim filed on 4 July 2001. The plaintiff, Fouady Markaboui, alleged that on 8 October 1999 the defendant negligently drove his motor vehicle whilst travelling in a northerly direction in O'Connell Street, North Parramatta and collided with her at the intersection of O'Connell and Grose Streets causing injury. 2 At the time of the accident, 9.50 am on 8 October 1999, the plaintiff was crossing O'Connell Street in an east-west direction in her wheelchair. The point of impact or collision was in the pedestrian crossing near the centre of lane two north bound in O'Connell Street. The relevant intersection is part of an arterial road located some distance away from the nearest shopping centre.

Uncontroversial facts 3 There was considerable common ground in relation to the facts of the case. 4 O'Connell Street is a sub-arterial road within the city of Parramatta. It follows an approximate south to north direction in the relevant area. It consists of two lanes in either direction with a right turn lane for northbound traffic. The road has a very gradual uphill gradient. 5 The road width between the east pedestrian ramp leading onto the roadway ramp on the western side is 18 metres. O'Connell Street is straight for approximately 220 metres before its intersection with Grose Street. The intersection is (and was at the material time) controlled by a set of traffic signals. Grose Street is also fairly level and straight. 6 At the time the road surface was constructed of asphaltic concrete (hot mix) and was in fair condition. The weather conditions were fine at the time of the collision. 7 The northbound lane in which the defendant, Mr. Gardner, was driving measured 2.8 metres wide. The point of impact was approximately 10.4 to 11.2 metres from the eastern kerb of O'Connell Street. The point of impact was placed by the evidence at approximately 1.1 metres north of the southern crossing boundary. 8 It was common ground that the traffic signal was "green" for the defendant driver as he approached the intersection and remained so at the time of the collision. On that basis, the plaintiff would have faced a steady "Don't Walk" signal for a similar time that the green signal was showing for the defendant. This, of course, is a material matter in the context of the events leading to the collision. 9 The defendant was driving a 1986 Holden Commodore sedan. He claimed that he was travelling at a speed of between 50 to 60 kilometres per hour. He conceded that his approach speed may have been 60 kph just before he saw the plaintiff and braked. There was no evidence to dispute his estimate of his speed of travel. 10 In order to understand the particular traffic light sequences controlling the intersection, it is necessary to refer to the evidence concerning the programmed sequences or phases of operation. 11 According to a letter of April 2005 (Exhibit 4(D1)) from the Roads and Traffic Authority, the pedestrian crossing times allocated to the crossing on the southern approach of O'Connell street traffic signals at its intersection with Grose Street was comprised of three sections as follows:- 1. The "Walk" time was set at six seconds. 2. The initial "Don't Walk" period was set at 10 seconds. 3. The second "Don't Walk" period was set at six seconds. 12 On this basis, as Mr. Hanley, the plaintiff's traffic consultant, stated, the flashing red light for pedestrians in Grose Street lasts for 16 seconds followed by an all red signal. 13 I will return later to discuss the significance in these proceedings of the signal cycles.

The plaintiff's version of events 14 On the morning of the accident, the plaintiff was travelling to the Northcott Society located in Grose Street for the purpose of participating in an outing that had been arranged by the Society. According to a statement given by the plaintiff to her then solicitor, Napier Keen, on 1 May 2000, the arrangement was for her to arrive at the Northcott Society premises at nine o'clock for a field trip but she was running late. She rang a supervisor at the Northcott Society named Rayce on arrival by train at Parramatta to inform him that she was running late. It took more than half an hour for her to travel in her wheelchair from the station to the Northcott Society. 15 In cross-examination by Mr. Bartlett, SC. for the defendant driver, the plaintiff denied that she was concerned about missing the bus then stationed at the Northcott Society and crossing against a flashing red light that turned to solid red. She also denied that from the time she left the pavement to cross O'Connell Street she was looking at all times to her right towards the front of the bus. 16 The plaintiff on approaching the traffic lights at the intersection stated that she asked a nearby person to press the traffic signal button for her. She said there was stationary traffic to her right in O'Connell Street and she waited until the traffic signal turned green for her and then commenced to cross O'Connell Street. It is not without significance that the evidence does not reveal any other pedestrian was on the crossing as the plaintiff approached the median strip in the roadway. She claimed she then activated the lowest speed on her wheelchair. In cross-examination by Mr. Bartlett, SC. she said she was moving at what she described as "a little bit under walking pace". She claimed that before setting off across the intersection she looked to her right and left and that "on my left side, it was empty before crossing". That is, she claimed, the traffic lanes to her left were empty. She denied that a Nissan Patrol four-wheel drive vehicle had entered the right turn lane coming from the south. 17 It is important to observe that, contrary to the plaintiff's evidence, there was, in fact, a Nissan Patrol vehicle, driven by a Mr. Bak, in the right turn lane that had come from the south and stopped just short of where the plaintiff was located before she was struck by the defendant's vehicle. I accept Mr. Bak's evidence, who was an impressive witness, in this respect. I will refer to his evidence below. 18 The plaintiff said she remembered a red vehicle on the very far lane in the northbound lane on the side of the Parramatta Leagues Club at the intersection and that it was stationary. She said that she moved across the roadway at a constant speed "but not fast". She said she stopped in "the middle stream" by which she clarified that she meant the median strip. The red car was still there at this point. She says she looked, didn't see any vehicles and "that is why I proceeded". At that time, the lights facing her, she claimed, were then "flashing red". She continued. She looked to her left when she saw something. She didn't know what it was but she saw "something white" from the corner of her left eye. She was able to turn her head to the left (she said having more movement of her head then than now) and saw a car heading in her direction. She thought it was far enough away at that point to stop. She could not estimate how far away the vehicle was when she noticed it. She turned to continue when she heard the "slam of his brakes" and he was "sliding towards me". The car, she said, clipped the back portion of the left side of her chair. She said she went up into the air and landed on the bonnet of the car and went to the ground. Both the driver and Mr. Bak gave evidence contrary to the plaintiff. According to them, she was not thrown onto the bonnet of the car. 19 The plaintiff, in cross-examination, confirmed the timing and sequence of events. This included the fact that the traffic signals facing her turned green before she left the footpath, upon which she said she activated her wheelchair and moved at a little under walking pace. She said she stopped at the median strip "thinking I was being cautious" and "because I was anxious". She confirmed that she did not see a vehicle in the right turn lane first after the median strip and added "there was no vehicle there". She was sure of that because she was looking to the left quite a few times. 20 The plaintiff, in cross-examination, said that she was stationary at the median strip for three or four seconds although a little later added "I'm only guessing". When she started off again she was moving at slightly under walking pace, that is, at the same speed as before. The plaintiff agreed that there was little damage to her wheelchair as a result of the accident. 21 Although the plaintiff had no recollection of providing a statement to Police Officer Fullerton, it was accepted that she did so. The record of the statement is Exhibit 1(D1), being a copy of the relevant extract from the police notebook. In it the plaintiff, inconsistently with her evidence, said she (not another pedestrian) pressed the button at the lights to cross, they turned green and she proceeded to cross. By the time she got half way, the signal lights facing her were red. She thought the signal was flashing red. The balance of her statement was reasonably consistent with her evidence. 22 In her statement to her former solicitors, Exhibit 2(D1), she stated that she began crossing the intersection "as soon as the lights turned green". She also stated that she waited three seconds when she reached the centre of the road before proceeding. At this point, the lights were flashing red. She stated, inconsistently with her evidence, that she proceeded at normal walking pace. 23 Before further analysing the evidence, I should make reference to some other matters contained in written statements given by the plaintiff in relation to her accident. There is no reference, consistently with her evidence in chief, of the presence in the right turn lane of a four-wheel drive vehicle stationary at the intersection for northbound traffic in O'Connell Street. Given the evidence of Mr. Bak, the driver of the four wheel drive, it is a surprising that the plaintiff did not refer to having seen the vehicle at any stage whilst she was crossing O'Connell Street. 24 In the statement given to her solicitors, the plaintiff claimed that when the green walk signal flashed, she proceeded to cross the intersection after checking for traffic on her right and left and that she proceeded at the equivalent of a normal walking pace, not at the slower pace referred to in her evidence-in-chief. In that statement (Exhibit 2(D1)), she stated that she had a clear and unobstructed view to her left and, apart from the vehicle "in the gutter" she saw no other vehicle and continued to cross the road. This observation cannot be reconciled with her evidence in chief.

Speed and distance calculations 25 Mr. Stuart-Smith gave evidence on the estimated time that it took the plaintiff to travel from the eastern kerb to the median strip. The distance from the ramp was calculated at 7.1 metres and a mid-range speed was of 0.75 metres per second (the basis for which was explained in earlier evidence - about half the figure of 1.35 employed in engineering practice). The resultant calculated time of travel was 9.5 seconds. This is a calculation not without significance when it is borne in mind that there was a six second green light phase (and especially if one assumes the plaintiff commenced her crossing soon after the green light activated) followed by a 16 second flashing light and residual phase). 26 His evidence is also consistent with Mr. Bak's evidence which suggested that the plaintiff was unlikely to have set off soon after receiving the green light. His evidence had the plaintiff continually moving towards the median strip after the light had been green for northbound traffic for several seconds. I will discuss this aspect again below.

The driver's evidence 27 Mr. Gardner is a young man. He was travelling on his usual route to his workplace at Baulkham Hills. He had driven that route for some 12 months. He drove into O'Connell Street on the day in question from Victoria Road. 28 On the day of the accident, he was driving his manual car which he said was in good condition. He said he was driving in the lane closest to the median strip at a speed of between 50 and 60 kilometres per hour. As he passed through the intersection of O'Connell Street and Victoria Road (which is located about 175 metres south of the accident site), he said the lights at Grose Street turned green. He noticed a four-wheel drive vehicle in the right turn lane. It was stationary when he saw it. He said he then was about 150 metres away from the intersection (he had said 100 metres in his statement to the police). 29 There is confirmation of the reliability of the defendant's evidence in relating to certain of these facts. The driver of the four wheel drive, Mr. Bak, said that as he entered the right turn lane (which was about 70 metres in length), there was a green light for northbound traffic. At that point, the defendant was a distance behind the Nissan four wheel drive, although it is not possible on the evidence to state precisely what that distance was. 30 Mr. Gardner said that when he got next to the four-wheel drive vehicle or towards the back of it (his evidence was uncertain on this aspect) he noticed a wheelchair emerge from in front of the four-wheel drive vehicle. 31 In cross-examination, it was put to the defendant that he must have been further back from the rear of the four-wheel drive vehicle when he first saw the plaintiff. He said he may not have been right at the rear of that vehicle but he was not too far back. The defendant said he hit the brakes and lifted the hand brake and went down into neutral, bringing the car to a halt. He said he stopped on the white lines when the front right side of his vehicle impacted with the wheelchair. Sergeant Hand, who attended the accident, said he inspected the defendant's vehicle but found no visible damage. The defendant said his vehicle came to a stop at the second set of white lines for the pedestrian crossing. He said that the traffic lights remained green for him and did not change before impact. This was consistent with Mr. Bak's evidence. 32 The defendant, in cross-examination by Mr. Menzies, QC. for the plaintiff, stated that he had no awareness of the plaintiff's position until she stepped out from the four-wheel drive vehicle that had obscured her presence. The plaintiff's case in part was that from a distance there was the possibility of either seeing the plaintiff at earlier points of time, namely, when she crossed the south bound lanes or by a line of sight underneath the four-wheel drive. I will deal with each of these possibilities later in this judgment (paragraph 36). 33 The defendant conceded that from 175 metres back near the intersection with Victoria Road, he could see, subject to moving vehicles, both sides of the intersection. He travelled that distance without seeing the wheelchair until it emerged from the stationary four-wheel drive vehicle. He maintained that he was keeping a look-out. He stated he was watching the traffic in his lane and was not looking to the other side of the road. 34 It was put to the defendant that he did not take into account possible reasons why there was a stationary vehicle at the lights at the Grose Street intersection in the kerbside lane and the four-wheel drive vehicle in the right turn lane. It was put to him that their stationary positions could have indicated that there was somebody in the intersection. The defendant's statement to the police immediately after the accident as appearing in Exhibit M was as follows:- "Q.1 Were you the driver of motor vehicle ADH-91L that was involved in an accident on O'Connell Street, Parramatta about 9.40 pm [sic]] on 8 October 1999 A. Yep. Q.2 What happened? A. I was coming along doing between 50-60 and noticed that the lights were green. There was a car initially stopped in the left hand lane when the lights first turned green. I was about 100 metres away at this stage. There was also a car in the right hand lane waiting to turn right. When I got close to the intersection of O'Connell and Grose Streets, I noticed the lady in the wheelchair coming across the intersection. I hit the brakes, they locked up and slid forward. My car just tapped the wheelchair which pushed her out of the wheelchair and onto the road." 35 He was cross-examined on the particular statement, "I noted the lady in the wheelchair coming across the intersection". It was put to him that he had not suggested that he had not seen the plaintiff, "until she, as it were, popped out in front of the four-wheel drive". He agreed he had not but rejected the proposition that the explanation was that he had seen her some distance back as the statement perhaps might suggest and that his failure was simply one of, having seen the plaintiff and failing to brake in time. 36 Mr. Stuart-Smith, in oral evidence, stated that there is a line of sight from the driver's eye height underneath a vehicle located in front of the driver. It can be determined by the clearance of the vehicle and the typical driver's eye height. Based on calculations which he explained in evidence, a typical driver would have a view of the ground at the wheelchair wheel underneath the car about 44 metres back. The driver would only have a very marginal view - of 100 millimetres. I do not consider that the evidence establishes that the defendant could have seen the wheel or part of the wheel of the wheelchair sufficiently for him to have detected the presence of the plaintiff otherwise obscured by the Nissan Patrol vehicle.

Mr. Bak's evidence (driver of the four-wheel drive vehicle) 37 Mr. Chiwan Bak was the driver of the four-wheel drive vehicle referred to by the defendant. He operated a number of childcare centres including the Parramatta City Pre-School and Childcare Centre situated in North Parramatta. He was therefore familiar with the intersection. 38 On the day of the accident, he entered O'Connell Street on route to the childcare centre, proceeding in a northerly direction. He had often driven along that street. He was driving a Nissan Patrol four-wheel drive silver in colour with red toning. He was alone in the vehicle. He slowed his vehicle preparatory to making a right turn into Grose Street. He thought a couple of cars were following him which he could not identify but he did recall that the car was "creamy or white" in colour. He could see the vehicle in his mirror and it was very close. I note that this is not entirely consistent with the defendant's evidence, for he stated that the four-wheel drive vehicle was stationary when he first saw it. If that was correct, he must have been further away from it than Mr. Bak recalled. The closeness of his vehicle to the Nissan Patrol is of some relevance to the extent of the defendant's field of vision, particularly towards the eastern side of O'Connell Street towards its intersection with Grose Street. I will deal later with this aspect when I consider whether the defendant ought to have seen the plaintiff when she traversed the two south bound lanes in O'Connell Street. 39 As Mr. Bak moved into the right hand lane, he said the traffic lights facing him were green. He then noticed the plaintiff's wheelchair. He said it was hard to say whether it was before or after he changed lanes that he saw the plaintiff. Initially, he said it was at the point near changing into the right turn lane that he noticed the wheelchair crossing. He revised that to say it was just before the lane change. It was understandable that the witness' precise recollection of the sequence of fairly fast-moving events occurring over four years before was a little uncertain on details such as that. I am able to say, having carefully observed and heard Mr. Bak give evidence, that he impressed very much as a witness. 40 He said that although he could not be definite, he recalled that the plaintiff was at that time very close to the median strip. His vehicle by that time had slowed down already "but I had to slow down and stop it" "because wheelchair is crossing". He said that had he not stopped, his vehicle would have hit the wheelchair. He stopped it just before the stopping line (indicating a distance of 1.5 metres before the stopping line). At that time, the traffic lights were still green for northbound traffic. 41 Mr. Bak said he looked in his side mirror to see if there was an oncoming vehicle heading north as "it could be very dangerous to the lady". He looked at her and observed that she was looking downwards and he did not recall having any eye contact with her at all. 42 Mr. Bak said the speed of the wheelchair was "normal" and it appeared to him that "the wheelchair didn't have any intention to stop". He later stated that he didn't see the wheelchair stop - but that the wheelchair moved from his right to a position close to the median strip. When he looked in his mirror he saw the white car, heard breaking sounds "fairly sharp" and the vehicle hit the wheelchair. He thought the whole car that hit the wheelchair came to a halt past the stopping line. 43 Senior Constable Hand, the investigating police officer, at the time of the accident was some 50 metres away investigating another incident. He heard the screech of brakes and went to investigate. He confirmed that on inspecting the defendant's vehicle, there were no markings or damage to it which was consistent with the defendant's own evidence. The report on the accident made later that day is consistent with evidence given by both the defendant and Mr. Bak that, for northbound traffic in O'Connell Street, there was a green light both at the time of the collision and for a period before it occurred.

Mr. Bruce Hazel (the plaintiff's expert) 44 Mr. Bruce J. Hazel, an engineer, called on behalf of the plaintiff, had considerable experience in traffic engineering, road safety, accident investigation and reconstruction and various road transport matters including road design and construction and pedestrian/road safety issues. His report prepared for these proceedings is dated 9 March 2005 (Exhibit D). He relied upon the statement of the plaintiff (Exhibit 1(D1) and of the defendant (Exhibit M). The following are the principal propositions in Mr. Hazel's report:-

• On the basis of a 28 second phase from the green light for pedestrians proceeding in her direction and the green light for vehicles in O'Connell Street, the plaintiff must have either continued her travel across the intersection or been in motion and stopped in the centre (presumably meaning the median strip) for a total period of 28 seconds.

• At the time of the collision, the lights were green for traffic heading north in O'Connell Street.

• If the defendant saw the lights at the O'Connell/Grose Street intersection 100 metres south and he travelled at 50 kilometres per hour, the lights were green for him for seven seconds before he reached the point of impact. However, in evidence, as noted earlier, the defendant revised this by saying it was 150 metres, not 100 metres, when he saw the change to green. He may also have been travelling at a speed in the range of 50 to 60 kilometres per hour.

• Based on the statements, impact must have occurred 34 seconds (give or take a second or two) after the plaintiff commenced to move (ie., 28 seconds plus six or seven seconds allowing for when and where the defendant said he was when the lights facing northbound traffic turned to green).

• It would have taken the defendant 14 seconds to travel from the Victoria Road intersection and the point of impact and, therefore, the only conclusion was that the plaintiff was moving across or stopped for a few seconds for the entire time the defendant had travelled that distance. I note that if that were accepted, the defendant would have been a considerable distance back from Grose Street at the time the plaintiff traversed the southbound lanes of O'Connell Street, giving him little opportunity to have observed her at that stage of her crossing.

• This latter observation is contrary to Mr. Hazel's conclusion that the defendant must have seen the plaintiff slowly moving across the southbound lanes from east to west on the pedestrian crossing. The ultimate conclusion on this aspect will be addressed later when I consider whether the defendant in fact breached his duty of care in not seeing the plaintiff when crossing those lanes. 45 Issues arising from the evidence which need to be taken into account when assessing Mr. Hazel's observations are:-

• The fact that the evidence of Mr. Bak establishes that the plaintiff did not stop for three or four seconds or at all when crossing O'Connell Street, contrary to the plaintiff's evidence.

• The fact that there is evidence to which I shall later refer which suggests that the pedestrian lights facing the plaintiff at the time that she entered the crossing were not green, as she stated in evidence, given Mr. Bak's and the defendant's evidence that the light was green for northbound traffic for some seconds before the accident. 46 I note that Mr. Hazel's report contained a diagram which depicts lines of sight from a northbound vehicle travelling in the middle lane, that is, the lane next to the right turn lane at points commencing 50 metres from the intersection and from approximately 25 metres. 47 Mr. Hazel, in oral evidence, observed:-

• The pedestrian signal had to have been activated by someone to bring into operation the flashing "red light" signal.

• The phase of green and flashing red lights for east-west pedestrian at the intersection has a variable range - depending on traffic activating the Grose Street traffic activator. Mr. Hazel established a range of between 24 to 28 seconds when on his inspection.

• Importantly, if the lights for northbound traffic were green, the signal for the pedestrian crossing across O'Connell Street would, at that time, be on solid red.

• The Roads and Traffic Authority work on a figure of 1.2 metres per second walking speed for pedestrian.

• If the plaintiff had moved when crossing O'Connell Street at one metre per second, then to reach the median strip (6 to 6.5 metres from the eastern ramp edge) would have taken her 6 to 6.5 seconds (10 seconds if additional time is allowed for negotiating the ramp leading to the pedestrian crossing). At 50 kilometres per hour the defendant's vehicle would have been about 100 metres away when the plaintiff crossed the southbound lanes.

• His calculation of 34 seconds estimated as the time taken by the plaintiff to reach the point of impact (excluding 3 seconds on the assumption that the plaintiff stopped for that period) meant that the plaintiff had travelled extremely slowly (.34 metres per second). This latter figure was relied upon in cross-examination to establish that the defendant must have just entered O'Connell Street when the plaintiff crossed the southbound lanes. However, one underlying assumption is that the plaintiff did in fact immediately commence to move when the signal for her changed to green. The evidence to which I shall later refer, tends to establish that the plaintiff moved on to the crossing after the green light phase for her had stopped.

• The four-wheel drive vehicle could have masked the intersection from the perspective of the defendant if he was following six to seven car lengths behind. However, there was no evidence from the defendant that this was the distance between his vehicle and the four-wheel drive vehicle on approach. Indeed, the gap between them would be narrowing as the latter vehicle slowed on entering the right turn lane at about 70 to 75 metres from the intersection. The significance of the sight line of the defendant across to the southbound lanes as he approached, the likely speed and position of the plaintiff in relation to them and the question of intermittent obstruction of the sight line by moving southbound traffic are all matters upon which the plaintiff ultimately had to adduce evidence and discharge the onus of proof.

Mr. Roger Stuart-Smith (the defendant's expert) 48 Mr. Stuart-Smith is a qualified traffic engineer with more than 25 years of experience in crash reconstruction, road safety engineering and road and traffic systems. He produced a report for the defendant dated 30 July 2004 (Exhibit 6(D1). The report provided an opinion on:-

(a) the likely pre-braking speed of the defendant's vehicle;

(b) the likelihood or otherwise that the plaintiff could have been observed by the defendant. 49 Mr. Stuart-Smith stated that the circumstances in which the defendant was able to react to the presence of the plaintiff and apply his brakes and almost come to a stop were generally consistent with a low initial approach speed. Based on research on walking speeds for pedestrians, he estimated, based on the plaintiff's account of her speed of crossing, that a speed in the range of 1.2 to 2.0 metres per second would have been her estimated speed of travel. He took a range of possible crossing speeds of between 0.74 to 2.4 metres per second. 50 It is not without significance in reconstructing the plaintiff's movements to note that the southbound lanes which she had to cross prior to the median strip being reached, was 6.2 metres wide, not a significant width for this section of main road. He estimated that for a start up position of 0.5 metres behind the kerb line and the movement to at least the western edge of the median strip (0.9 metres wide) the distance travelled across the southbound lanes was likely to have been around 7.6 metres. Based on the range of possible speeds of 0.74 metres per second to 2.4 metres per second, the length of time that the plaintiff took to cross the southbound lanes is estimated as possibly within the range of 3.2 to 10.3 seconds. Mr. Stuart-Smith estimated that the distance from the edge of the median strip to the point of impact was likely to have been around 3.3 metres to 4.1 metres. At her possible walking speed range, the plaintiff would have covered this distance in around 1.4 to 5.5 seconds, a wide variation in possible time. 51 With a possible height of the wheelchair of around 1.2 metres above ground level, it would have been unlikely, in Mr. Stuart-Smith's opinion, that the defendant could have seen the top of the plaintiff's head across the corner of the bonnet of the four-wheel drive vehicle whilst it was stationary at the stop line. 52 Mr. Stuart-Smith considered that it was likely that the defendant saw the plaintiff as she emerged in front of the four-wheel drive at an early stage, since he was able to complete a perception reaction time and almost complete a deceleration to rest before impact, during the time that the plaintiff apparently travelled a relatively short distance from around the front of the four-wheel drive to the point of impact. 53 He stated that whilst the precise perception reaction time of the defendant was not known, on the assumption that it was "fast" to "normal" (ie., 1.2 to 1.5 seconds), the plaintiff would have been visible to the defendant for around two to three seconds (1.2 to 1.5 seconds perception reaction time plus 1.0 to 1.6 seconds of braking time). 54 In his report under the heading Time and Motion Scenario, Mr. Stuart-Smith made a number of points including the following:-

• The plaintiff and the defendant were shielded from each other by the four-wheel drive in the right turn lane for much of the time that the defendant approached the intersection.

• For a slow or faster speed by the defendant, the plaintiff would still have been shielded by the four-wheel drive vehicle for the critical portion of his approach. For a faster speed by the plaintiff, the defendant would have had less time available and consequently must have reacted faster (or have been travelling more slowly). 55 In oral evidence, Mr. Stuart-Smith made a number of calculations in order to estimate the period of time when the plaintiff would have been visible once she emerged from in front of the four-wheel drive into the laneway in which the defendant was proceeding northwards. The speed and distance calculation undertaken by him resulted in an estimate of about three to three and a half seconds of visibility. On this basis he stated that, assuming typical friction co-efficient of about 0.7 to 0.8, braking time from 50 kph to about 5 kph was estimated at about 1.6 to 1.8 seconds. Allowing for a typical reaction time of about one and a half seconds, one ends up with a calculation of three to three and a half seconds.

The issue of the plaintiff's visibility crossing the southbound lanes 56 There were two matters that influenced the visibility of the plaintiff:-

(b) the timing of the plaintiff's crossing. 57 The first issue raises the possibility of obstruction of the defendant's line of vision by the four-wheel drive vehicle at the time the plaintiff crossed the southbound lanes prior to reaching the middle of the road and/or possibly by any southbound lanes. Mr. Stuart-Smith's report on this question of visibility delineated between the feasibility of a view of the plaintiff crossing the southbound lanes and the view of that location from the perspective of a northbound driver required on safety grounds. This latter aspect is partly influenced by the distance the approaching driver is from that location. The closer the driver is, the greater the need for monitoring pedestrian movement in that location, being on the opposite side of the road to northbound traffic. 58 If the defendant's evidence is to be accepted, he was at least 100 metres and possibly 150 metres from the intersection when the lights turned green for northbound traffic. It would have taken him seven seconds to traverse 100 metres at 50 kilometres per hour and about 10 seconds to cover 150 metres at 60 kph. At any point before the lights turned green, he was therefore more than 100 or 150 metres away when the plaintiff crossed the southbound lanes. 59 Either distance is a substantial one for him to be monitoring any possible pedestrian movement on the southbound lanes at the crossing. If the plaintiff had crossed the southbound lanes either completely by this point in time, it would have been difficult, especially with traffic movement, for the defendant to have seen the plaintiff's movement across the southbound lanes of the crossing. If the plaintiff traversed those lanes (or one of them) at a later point in time, then the defendant's view could, on the evidence, have been, at least, intermittently obscured by Mr. Bak's vehicle ahead of him and possibly, if only intermittently, by other moving traffic. 60 Accordingly, there is, I believe, a very real doubt as to what the defendant could and should have seen in terms of the plaintiff crossing the southbound lanes. The plaintiff's expert, Mr. Hazel, conceded that if the defendant had been travelling six to seven car lengths behind the four-wheel drive vehicle just before it turned into the right turning lane and slowing to the intersection, the defendant driver's view of the east side of the intersection would be obstructed. Apart from moving traffic, there were no fixed objects or road geometric features to interrupt the defendant's view. 61 The capacity for the driver to have seen the plaintiff at the time she was crossing the southbound lanes was a matter in relation to which the plaintiff's onus of proof becomes significant. It is, of course, not to me to speculate as to what the line of sight or visibility generally might have been, at any particular point or points, for that is a question for evidence. There was no real attempt in the plaintiff's case in evidence to reconstruct the extent of visibility of the plaintiff when she was crossing the southbound lanes, having regard to prevailing traffic conditions, from the driver's perspective at any given point as his vehicle made its approach northwards. 62 On this question, it was Mr. Stuart-Smith's evidence that beyond 70 odd metres one cannot rely on drivers taking note of objects that are not within the actual intended path of a driver. Seventy metres is a general stopping distance for a driver travelling at 60 kilometres per hour, that is, about 50 metres which includes reaction time and stopping distance - 70 metres allows for a safety margin. The underlying factor, as explained by Mr. Stuart-Smith, was that "drivers are generally aware of what's going on within the distance in which they may be required to stop and avoid an object and I added a bit on to that distance".

Visibility of the plaintiff crossing the northbound lanes 63 There is no doubt in my mind that when the plaintiff emerged from in front of the four-wheel drive vehicle, the defendant had very little, if any chance of avoiding a collision. She emerged without warning in circumstances in which the defendant had the green light operating in his favour and he was proceeding within the permitted speed limit and at a speed that I consider was appropriate to the circumstances then existing, including the presence of the four-wheel drive vehicle and the other vehicle in the left northbound lane. 64 In terms of a perception reaction time the defendant almost completed deceleration before impact. It is quite true, as Mr. Stuart-Smith conceded in evidence, that a driver northbound, where there were stationary vehicles in the left northbound lane and the right turning lane, would proceed with "alertness". Once within his stopping distance his "alertness would be expected to be very high" for a distance (at 60 kilometres per hour) of about 50 metres or so. However, that said, the evidence does not establish that travelling at the permitted speed of 60 kph was attendant with a foreseeable risk that a person would, without stopping or looking and/or without warning, emerge from in front of a stationary four-wheel drive vehicle located in the right turn lane and then into the path of a vehicle proceeding north at that speed. This is particularly so in circumstances where such events occurred after the green traffic signal had been operating in favour of northbound traffic for an interval during which time the defendant travelled approximately 150 metres to the intersection.

Speed and distance factors 65 The speed, distance and other relevant observations of Mr. Bak I regard as important. As earlier noted, I consider Mr. Bak was an impressive witness and other evidence (eg., of Mr. Roger Stuart-Smith) on speed and distance factors can be evaluated against his evidence for reliability. The following points emerge from Mr. Bak's evidence:-

• As he turned into the right-hand (turn) lane, the lights facing him were then green.

• Just before moving into the right-turn lane, he saw the plaintiff's wheelchair crossing and at that point it was "very close to the median strip" .

• He had to slow down and stop his vehicle because of the presence of the plaintiff in her wheelchair as otherwise he would have hit the wheelchair.

• The plaintiff was looking downward and he didn't have any eye contact at all with her.

• The wheelchair appeared to Mr. Bak to be travelling at "normal" wheelchair speed.

• The wheelchair did not appear to stop whilst he observed it.

• The traffic lights, from Mr. Bak's approach through until the collision, remained green for northbound traffic. 66 The effect of this evidence is that the plaintiff had made her way at a "normal" wheelchair speed across the southbound lanes to the median strip or close to it when Mr. Bak entered the right turn lane and was almost at a point into that lane that required Mr. Bak to bring his vehicle to a stop as otherwise he would have collided with her. At no time did he see her stop her wheelchair. 67 That is consistent with the pedestrian lights facing the plaintiff having been at some point in its red flashing phase close to the point when the plaintiff commenced to cross the roadway. 68 The effect of this evidence is, of course, unhelpful to the plaintiff. First, it tends to contradict her account of moving very slowly. Secondly, it contradicts her account of having stopped at the median strip for a few seconds before venturing into the northbound traffic lane. Thirdly, it tends to suggest, contrary to her evidence, that she entered the crossing during the red flashing phase and not as she said as soon as the signal turned green for pedestrians, including herself. Fourthly, the evidence tends to contradict the plaintiff's evidence that she looked in Mr. Bak's direction as she approached the median strip and moved beyond. 69 I turn against this evidence and my analysis of it to the technical evidence concerning the time sequences or phases for traffic signals operating for both O'Connell and Grose Streets. 70 The traffic control light signals at the intersection has two phases - one for each roadway: "Phase A" allows for movement along O'Connell Street

"Phase B" allows for movement in both directions along Grose Street 71 Phase B, as it applied to the plaintiff, consists of three sections:-

(b) the initial "Don't Walk" or flashing red period is set at 10 seconds;

(c) the second "Don't Walk" period is set at 6 seconds. 72 There are two possible variations or options regarding the length of the "Don't Walk" display during "B" phase as explained in a letter from the Roads & Traffic Authority dated 4 April 2005. The range is between a cycle time of 22 and 28 seconds. 73 Mr. Stuart-Smith, in his report of 30 July 2004, on the basis of his instructions in particular in paragraph 3.2, estimated that the green light operated for the defendant in phase "A" for at least two to three seconds before impact (based on a perception reaction time and a deceleration time before the impact occurred). 74 Based on a green light having been displayed towards the defendant before he saw the plaintiff, a steady red "Don't Walk" signal would have been displayed towards the plaintiff for a similar time that the green signal was displayed towards the defendant. That analysis is consistent with Mr. Bak's evidence. It is to a point inconsistent with the plaintiff's evidence that she entered the crossing at the commencement of the green signal operating in her direction. I do not accept the plaintiff's evidence in that respect. I note also that the evidence was that normal adult walking speed is 1.2 metres per second. The point of impact was approximately 11 metres from the eastern kerb. At a travel speed of 1.2 metres, the plaintiff would reach the point of impact 9.2 seconds after leaving the kerb in cycle times of either 22 seconds or 28 seconds, depending upon traffic volume in Grose Street. Even at the mid-range speed of 0.75 metres per second, it would have taken about 9.5 seconds to travel 7.1 metres (to the mid-point of the median strip) and 14.7 seconds to travel 11 metres to the point of impact. 75 Mr. Stuart-Smith estimated the time it took for the plaintiff to cross the southbound lanes to be within the range of 3.2 to 10.3 seconds (based on a range of possible speeds of 0.75 metres per second to 2.4 metres per second (such speeds derived from Research Walking Speeds by Eubanks, 1994). 76 The speed/distance calculations suggest that the plaintiff's evidence of leaving the kerb as soon as the light turned green for her could not be correct and are more consistent with the plaintiff having left the kerb during the flashing red phase such that she had the steady red lights operating against her before she reached the median strip, by which time, the green light had been operating for northbound traffic for some seconds. 77 In analysing the evidence for the purposes of determining whether the defendant was in breach of his duty to the plaintiff, the central facts I find on the evidence included:-

• the fact that the defendant had the green light in his favour for some time before he approached the intersection and it remained green until the point of the collision;

• the defendant was, in moderate traffic conditions, proceeding along what was a four lane arterial road at a speed within the speed limit, that is between 50 and 60 kph at or close to 60 kph;

• the plaintiff traversed the crossing initially at some point against a red flashing light and, as at the time of the accident, against a solid red light;

• When the plaintiff moved across the intersection, she did not, contrary to her account in evidence in chief, pause or halt but continued across the intersection without warning and without noticing the four-wheel drive vehicle immediately to her left. 78 The proper test for negligence is whether the plaintiff has proved that the defendant, who owed a duty of care, had not acted in accordance with reasonable care: Derrick v. Cheung (2001) 181 ALR 301, 305. 79 Whilst it may, in certain circumstances, be reasonably foreseeable that a pedestrian could cross at an intersection against the red light, relevant questions may be posed in one or other of the following ways:-

(a) whether, on the facts established, there was a particular foreseeable or observable risk which the defendant should have taken into account but did not.

(b) were there facts which established that a particular danger was foreseeable before a collision was too late or inevitable?

(c) Were there facts proved that evidenced a particular danger which was apparent or ought to have been detected by the defendant in time to have avoided a collision? 80 As to the defendant's driving conduct, I have previously indicated, that he was driving within the speed limit along a main arterial road with an indeterminate amount of traffic passing along the road in both directions at different points in time. The probability is that at the relevant time of day, there was moderate intermittent, traffic flow. He stated that at approximately 150 metres from the intersection the traffic signals turned green in his favour and, generally speaking, his evidence in this respect is consistent with the evidence of Mr. Bak. Therefore, on the evidence (including the expert evidence), one can infer that the solid red signal light had been showing against the plaintiff for a number of seconds by the time the she had reached the median strip. 81 The submissions of Mr. Menzies, QC., for the plaintiff, at first, focused upon what was said to have been the opportunity and indeed the obligation of the defendant as he proceeded toward the intersection to have detected the plaintiff in a wheelchair moving across the southern bound traffic lanes before she got to the median strip. I have indicated earlier the reasons why I do not accept that the defendant was in breach of duty in not having detected the plaintiff at that point. 82 In his final submission, Mr. Menzies concentrated the emphasis of his submissions to the circumstance of the stationary four-wheel drive vehicle being located in the right turn lane and the motor car that was stationary in the left northbound lane. The submission was that greater caution was required on the part of the defendant effectively requiring him to have reduced speed as he approached the intersection by reason of the possibility that a pedestrian may be crossing the intersection, contrary to a red traffic signal. 83 I set out relevant extracts from the plaintiff's written outline of submissions:- "10. The Second Defendant, with a clear and uninterrupted view of both sides of the intersection, continued to travel at 50 to 60 kms up until the time that he first says he saw the plaintiff. He did so despite two vehicles remaining stationary at the intersection for at least 10 seconds after the lights had turned green. The second defendant, upon reaching the intersection, commenced to pass the stationary vehicles. 11. The Second Defendant failed to keep a proper lookout, he only considered the traffic in the lane in which he was travelling and failed to take into account the two stationary motor vehicles at the intersection and the possibility that there may be something on the road in that intersection preventing those vehicles from moving ahead." 84 The plaintiff's counsel placed reliance on the High Court's decision in Sibley v. Kais (1968-69) 118 CLR 424 at 427. That case involved what was termed the "right hand rule" and the question of reasonable care required of a driver as he or she approaches an intersection. I do not consider that the decision in that case assists in resolving the particular factual issues in the present case. 85 In this case the four-wheel drive in its stationary position at the intersection was located in a position where it would practically obscure the presence of the plaintiff until she had passed it and emerged into the second lane, the lane along which the defendant was driving. The obstruction of vision by a vehicle in those circumstances will often deprive an oncoming driver of the opportunity of detecting a risk or danger and reacting to it: see Knight v. Maclean [2002] NSWCA 314 and Martin v. Reda (2004) 41 MVR 421 at 430-431. In Martin (see discussion below), the Queensland Court of Appeal discussed a number of decisions including the decision in Stocks v. Baldwin (1996) 24 MVR 416. These decisions may be categorised into groups (see analysis of relevant decisions below). The discussion in those cases emphasises particular facts that provided or established an opportunity in the defendant to see a plaintiff at a distance where obstructions interfering with vision existed. In particular, reference is made to the fact that, based upon observations of Mahoney, P. in Stocks (supra), that while it is foreseeable that a person may step suddenly from behind a parked car or other obstruction into the path of an oncoming vehicle, the law does not require that all travel be at a speed slow enough to be able to stop before a collision with such a person.

Analysis of motor vehicle accident cases at pedestrian crossings and other cases 86 Analysis of cases involving collisions at pedestrian crossings regulated by traffic control lights and other specific instances involving vehicle/pedestrian collisions reveals the existence of specific facts that establishing an opportunity in the driver in question to have reacted in time to have avoided the incident:-

(a) Yu v. Yu (1996) 26 MVR 509 (NSWCA, Meagher, Beazley, JJA. and Abadee, AJA). The plaintiff crossed George Street, Sydney at a pedestrian crossing moving east to west when struck by the defendant's car driven within the speed limit of 60 kph northwards along George Street. At the time, the pedestrian lights at the intersection were showing "Don't Walk" and traffic lights controlling northbound traffic was green. The plaintiff crossed in front of a Land Cruiser and emerged into the lane along which the defendant was driving. The trial judge found, because of the size of that vehicle, the defendant could not have seen the plaintiff for at least the distance across the right-hand turn lane. On appeal, however, the Court observed that there was evidence that the defendant had observed the plaintiff at an earlier point on the median strip and it was held that it was foreseeable that the plaintiff could continue across the intersection. Additionally, the driver did not then slow down or brake from a speed of 50 to 60 kph.

(b) Clarke v. Freund (1999) 29 MVR 361 (NSWCA, Handley, Sheller and Beazley, JJA). The driver drove along Maitland Street, Mayfield approaching an intersection controlled by traffic lights which were red as he approached to 40 kph. He was in the lane closest to the centre dividing line. In the kerbside lane there were a number of stationary vehicles. The lights turned green and the driver accelerated up to 60 kph. The pedestrian stepped from the footpath onto the crossing and started to cross the road. She started to run and entered the path of the driver. It was held that the driver should have been aware of the possibility that a pedestrian might cross the road passing through a stationary line of traffic and then onto the land with moving traffic. The driver acknowledged that he was aware of such a possibility.

(c) Cook v. Hawes (2002) 35 MVR 391 (NSWCA, Stein, Hodgson, JJA. and Ipp, AJA). The plaintiff was run down by a self-employed courier driving a van on or near a pedestrian crossing controlled by traffic lights in George Street, Sydney. The lights were green in favour of the defendant. The plaintiff was colour-blind and entered against the "Don't Walk" sign. He moved at a fast pace. The defendant was travelling at 50 kph. He braked but could not avoid the plaintiff. In this case, the driver in fact had had an opportunity of seeing the plaintiff. The latter had crossed two traffic lanes in view of the defendant before being hit and when the driver caught sight of the plaintiff he was still about 30 metres away. In such circumstances, it was open to conclude that the speed of 50 kph approaching the crossing was excessive. Additionally, the driver did not brake immediately when he first caught sight of the plaintiff but waited until he confirmed it was a person crossing the road. He should instead have braked.

(d) Martin v. Reda (2004) 41 MVR 421 (Queensland Court of Appeal). The plaintiff had argued that the presence of a bus obscuring vision provided a warning to the defendant of the possibility of a pedestrian or cyclist emerging from his left and in front of the bus as the plaintiff did. The Court analysed a series of cases including Government Insurance Office of New South Wales v. Ergul (1993) 18 MVR 339; (1993) Aust. Torts Reports 81-252; Knight v. Maclean [2002] NSWCA 314; Stocks v. Baldwin (1996) 24 MVR 416; Cook v. Hawes (2002) 35 MVR 391; Sibley v. Kais (1967) 118 CLR 424 and Derrick v. Cheung (2001) 181 ALR 301 in determining the outcome of the appeal. The Court held that, on the particular facts, the accident belonged to the category of case bearing similar circumstances to those considered by the High Court in Derrick (supra). No particular perceivable risk had existed which the defendant driver in either case should have taken into account but did not. In Reda , the Court of Appeal ultimately held that the possibility of a pedestrian or cyclist emerging from the front of the bus was a remote one against which it would have been unreasonable to take precautions in circumstances where Mr. Reda's car was part of a moving line of vehicles.

(e) In Government Insurance Office of New South Wales v. Ergul (1993) 18 MVR 339; (1993) Aust. Torts Reports 81-252, the plaintiff had been one of a number of pedestrians crossing a major carriageway against a "Don't Walk" sign. He had looked to his right and saw nothing, looked to the left and saw only a truck approaching in the median lane. When the pedestrian was about one metre from the kerb which was his target, he was struck, probably by a motor cycle travelling in that lane adjacent to the kerb and presumably obscured from the pedestrian's view by the truck. The unidentified driver was found, at first instance and on appeal, to have been negligent. Mahoney, AP. inferred from the proved facts that the pedestrian had in fact been in view of the cyclist for at least part of the time during which the cyclist approached the pedestrian crossing. Additionally, other pedestrians had been on the crossing had the cyclist been keeping a proper lookout, he would have seen them on it and taken appropriate precautions. Accordingly, the important fact inferred was that there had been an opportunity for the cyclist to have seen both the plaintiff and the other pedestrians crossing the roadway. This case, like Cook v. Hawes and Stocks v. Baldwin belonged to that group of cases where, the defendant had in fact an opportunity of seeing the plaintiff at a distance at which a collision could have been avoided, unlike the circumstances found in Reda and Derrick .

(f) Stocks v. Baldwin (1996) 24 MVR 416 (Mahoney, P., Sheller, JA. and Simos, AJA). Reference has earlier been made to the observations of Mahoney, P. in this case. The facts appear in the judgment of Simos, AJA. The plaintiff crossed over Condamine Street, Manly Vale which had three lanes either side. The plaintiff was crossing from east to west. It was raining. Traffic was banked up from nearby traffic lights to the point where the plaintiff was crossing in the lane nearest the median strip and in the middle lane. There was no bank-up in the kerbside lane. The plaintiff left the eastern side and paused at the median strip and then walked purposefully without looking across the stationary traffic adjacent to the median strip on the western side of Condamine Street, across to the middle lane and into the adjoining kerbside lane where she was struck by the defendant's vehicle.

The trial judge held the defendant to have been negligent driving at an excessive speed (25 to 30 miles per hour) in the circumstances, including the conditions then existing and the relevant location. There was a shopping centre in the area and a school in the area, the accident occurring after 4.00 pm. Pedestrian movement in the area could therefore be expected.

On appeal, Simos, AJA. referred to two specific matters. One was the fact of a pedestrian in the prevailing conditions doing what the plaintiff did as being reasonably foreseeable. The second was the evidence that the defendant did not see the plaintiff until she was about two paces into the kerbside lane from a distance of three, four or five metres. Additionally, the trial judge had reservations as to whether a large vehicle had in fact been present and had obscured the driver's vision.

(g) Knight v Maclean [2002] NSWCA 314. The plaintiff was hit by a car driven by the defendant at about 9.10 pm one night whilst crossing Parramatta Road. The driver had been proceeding west in an open aspect and the plaintiff was in the vicinity of a street light at an adjoining street to Parramatta Road. She had been affected by alcohol and crossed the road in a northerly direction in order to get a taxi. She was struck in lane three, the lane nearest to the median strip. It was said that the plaintiff's presence was masked by another car in the second lane and that she did not stop but was moving quickly and walked straight into the lane in which the defendant was travelling. The evidence indicated the plaintiff did not look right, towards the defendant's vehicle, only west, in the opposite direction. In a detailed judgment, Heydon, JA. (as he then was) noted the failure of counsel for the plaintiff to cross-examine an independent witness to obtain concessions contrary to that witness' evidence in chief and consistent with the plaintiff's evidence and that this was a significant fact.

Reference was made to the dissenting judgment of Davies, AJA. in Derrick (supra) and to the High Court approval of his approach. In that respect, it was noted that one of the themes in the reasoning of Davies, AJA. was the fact that the defendant's driving satisfied conventional criteria for safe driving - a modest speed (60 kph), the maintenance of reasonable distance from the vehicle in front and the keeping of a proper lookout.

Heydon, JA. noted that the defendant's driving was intrinsically careful, there was no exceeding of the speed limit and movement was with the traffic flow. 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 position than the defendant in Derrick (supra) 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 in 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 …" (at [66]).

(h) Derrick v. Cheung (2001) 181 ALR 301. A child (the respondent) suddenly emerged from between parked vehicles. The appellant braked - there was nothing to suggest her reactions were unduly slow - attempted to avoid the respondent by veering to her right. The car skidded and collided with the respondent. The incident did not occur near a school or bus stop or other place where reducing speed or special caution in driving might be required or prudent.

The appeal was upheld as there was no basis upon which a finding of negligence on the appellant could be sustained. The trial judge was required to determine issues according to law and, on the evidence, reasonable care had, in fact, been exercised. Even if there was an inference (which the trial judge drew) that, had the appellant's speed been slower by a few kilometres per hour she would then have been able to avoid the collision, nonetheless, it was not an inference upon which a finding of negligence could be based. The Court noted that the decision in Stocks v. Baldwin (supra) depended on its own facts.

Determination 87 A consideration of the approach and principles discussed in the cases referred to in the above analysis would, in my view, indicate that unless there existed circumstances that signalled or indicated a possible danger or a risk of a pedestrian emerging from in front of the four wheel drive vehicle, there was no breach of duty by the defendant in this case. The presence of that stationary vehicle at a point close to the intersection was not, in itself, indicative of risk or danger. It was located in the right turn lane in a stationary position where one would anticipate a vehicle intending to be before undertaking a turn into Grose Street. Its momentary stationary condition was consistent with the driver pausing, possibly because of oncoming traffic, before undertaking such a turn. 88 Similarly with the motor car in the lane closest to the footpath, its presence would be consistent with the driver having been stationary at the lights about to make a left hand turn. There was no basis for a northbound driver assuming that its stationary position before undertaking its left turn bore a relationship of any kind to the fact that the four-wheel drive vehicle was then stationary. 89 I will accordingly deal with the submission which posed the question as to whether or not the fact that there were two vehicles, one in the right turn lane and one in the far left lane, in combination, could have or did signal the possible presence of a pedestrian about to traverse the crossing against the red light. 90 In analysing the contention that the defendant driver ought to have been influenced to reduce speed below a range of 50-60 kph by the presence of a stationary vehicle in the right turn lane and a stationary vehicle in the left turn lane, the following factors are relevant:-

(a) The driver, when about 150 metres from the intersection, received a green signal to proceed.

(b) The evidence of Mr. Stuart-Smith was that drivers approaching a green signal have a greater expectation that "they have a free ride" and it is uncommon that they will necessarily be expecting objects coming against the lights.

(c) The fact that there was a stationary vehicle in the right turn lane in a four-way intersection when that vehicle had a green light, is consistent, as noted earlier, with an intention to turn, not to stop to avoid a pedestrian proceedings against a signal.

(d) A stationary vehicle in the left lane which had just received a green light is consistent with an intention of the driver of that vehicle to allow a pedestrian to cross south to north across Grose Street or that vehicle may simply be in a preparatory phase prior to the commencement of a left hand turn, the Leagues Club being located on the southern left side of the intersection.

(e) Although the plaintiff had engaged an expert, Mr. Hazel, there is nothing in his report of 9 March 2005 or evidence to suggest that he considered the presence of stationary vehicles in the right turn and left lanes was of any significance to a northbound driver such as the defendant ascertaining or identifying any potential risk of the plaintiff emerging without notice from the four-wheel drive vehicle.

(f) Whilst there may be a danger that a pedestrian may suddenly appear on a pedestrian crossing contrary to a traffic signal, in evaluating the likelihood of such an event, it is relevant in this case to have regard to the interval of time that elapsed on the defendant's evidence (which as I have stated elsewhere, I essentially accept) and the evidence of Mr. Bak after the traffic lights turned green for northbound traffic and before he reached the intersection and the plaintiff emerged.

(g) There was no evidence as in that category of case such as Yu v. Yu and Cook v. Hawes analysed above that the defendant had in fact seen the plaintiff at a point antecedent to her making the crossing in the path of the defendant's oncoming vehicle. 91 I have considered the evidence and the submissions made on behalf of the plaintiff at some length, having had the benefit of a view of the roadway and the intersection in question. 92 The plaintiff's unfortunate and considerable disabilities, which pre-dated the accident together with the additional problems resulting from the accident, call for nothing less than a very close examination of all of the evidence in these proceedings and the submissions that have been made on her behalf. The obligation that I have in determining the plaintiff's claimed cause of action and the defendant's defence of it is, of course, to determine the issues between the parties according to law. 93 The evidence does not, in my opinion, establish an absence of care by the defendant, but rather the fact that reasonable care was exercised by him in the circumstances that arose on 8 October 1999. 94 I am, accordingly, of the opinion that the defendant was not negligent and accordingly there must be a verdict in favour of the defendant. 95 The plaintiff to the unfortunate accident, the subject of these proceedings, is an invalid pensioner. Should the defendant wish to make an application for costs, then I will be obliged to deal with it. In that event, I will hear submissions of the parties. **********

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