Ross v Hamilton [1997] QSC 170

Supreme Court of Queensland|1997-09-12|Before: Muir J

The plaintiff was seriously injured on 28 April 1993 when struck by a motor vehicle driven by the defendant whilst crossing a Service Road at Goodna at a pedestrian crossing controlled by traffic light signals. The defendant was the driver of the vehicle. Only three witnesses to the accident gave evidence. They were the plaintiff, the defendant, and a Mr Hogan, who was travelling in a motor vehicle behind the defendant's. The plaintiff swears to a recollection of waiting for and seeing a green walk signal before commencing to cross the road. The defendant and Mr Hogan swear that the motor vehicle traffic light was green at all relevant times. Mr Grant-Taylor for the plaintiff, and Mr Douglas for the defendant, submitted that I should determine the case without regard to the possibility that the pedestrian and traffic lights were out of synchronisation. There no evidence of malfunction of the lights at relevant times.

Before going to the evidence of these persons and that of the only other witness in the case, I make the following findings in respect of uncontested facts. There is a pedestrian overpass constructed over Ipswich Road, opposite the Goodna Railway Station. In order to get from the top of the overpass to a station platform it is necessary to descend from the overpass by means of a ramp which executes two right-hand turns in the course of its length. A short exit section of the ramp enters the footpath in the direction of Brisbane. Near the edge of the footpath at the mouth of the ramp, there is a wire mesh barrier of perhaps 4 or 5 metres in length. A pedestrian crossing, marked by two parallel white lines across the road, is located at a gap in the barrier. A traffic light, cantilevered from a pole on the other side of the crossing, is positioned above the crossing over the centre of the road. There is another stop light mounted on that post and a third mounted on a short post on the outside of the curb at the edge of the pedestrian crossing. The latter post has a button mounted on it to enable pedestrians to activate the pedestrian walk signal and the red traffic light.

In order to proceed to the station from the pedestrian crossing one must turn right on crossing the road, walk down some 20 metres or so of footpath, cross a pedestrian overpass to a platform between two sets of railway tracks, or continue to cross the overpass over another set of railway tracks to a platform on the far side.

The accident took place between 12 p.m. and 1 p.m. The weather conditions were clear. The service road is a one-way road with two lanes. The cars driven by the defendant and Mr Hogan had travelled on a road way passing under Ipswich Road, stopped at a stop sign at the intersection of Ipswich Road and the service road, executed a right-hand turn into the service road and then travelled in the right-hand lane towards the pedestrian crossing. The distance between the entry point onto the service road and the pedestrian crossing was approximately 100 metres. There was an appreciable uphill grade between the intersection and the pedestrian crossing, and all three traffic lights at the crossing were visible from the intersection. A pedestrian walking on the two bottom most sections of the pedestrian bridge over Ipswich Road would have been visible to a motorist on the section of the service road between the intersection and the traffic lights driving towards Brisbane for much, if not all, of the distance of that section of road. There may have been a momentary interval during which a view of such a pedestrian was temporarily obscured by supports from the overbridge.

The plaintiff was born on 21 November 1995, and was thus 38 at the time of the accident. He had spent 6 years as an army cook. Towards the end of that period he was a sergeant cook. He left the army in February 1980, and spent some 6 years employed as a cook in various restaurants. In 1986 he commenced employment with Woolworths at Wacol, as a "small goods man" or "chopper man". His work entailed using heavy machinery to make sausages and other small goods out of frozen meats. At the time of the accident the plaintiff was the head "chopper man" in charge of quality control in the production section of the works. The staff in that section were answerable to him. On 28 April 1993 the plaintiff was on holidays. He had been to Goodna on the train and was returning to the Goodna Railway Station to catch a train to Wacol where he resided.

He said that he was planning to return home and then catch a train to Brisbane later in the day. He recalls being in no hurry to catch any particular train.

There was no evidence that the train which the plaintiff was hoping to catch was approaching the station at the time of the accident, or was visible to the plaintiff.

There was a pedestrian on the left-hand (station) side of the road moving to cross at the lights. He was not called to give evidence.

THE PLAINTIFF'S VERSION OF THE EVENTS IMMEDIATELY SURROUNDING THE ACCIDENT

The plaintiff said he crossed the overbridge, pressed the button at the lights, looked to make sure that the lights changed, saw the change to green, took a step off the curb, went sailing through the air, and remembers-

"Seeing the little green man go past me as I was in the air and other than that I can remember lying on the ground. The only other thing I can remember ... I think it was an ambulance man or someone like that, he was looking over me. Then I remember the back doors of the ambulance opening and then I remember waking up in Ipswich Hospital in the emergency room ... ".

He also recalled waking up in the operating theatre and being requested to sign something. The plaintiff does not suggest that he looked to his left to ascertain the presence of any vehicle or vehicles moving on the roadway before stepping off the curb. He does have something of a recollection of a person standing on the other side of the road. The plaintiff was operated on immediately after the accident. He was in intensive care "for a lengthy period" and was discharged after 19 days. He professed a distinct recollection of having seen the pedestrian signal turn green before he started to cross the road.

As a result of injuries sustained in the accident the plaintiff suffered memory difficulties, but there is no suggestion that he suffered any loss of memory in respect of matters prior to his injury. Nor was there any evidence which suggested that his memory in respect of such matters is likely to be distorted or false in any way.

He says that the matters of which he gave evidence have always stuck in his mind.

I consider the plaintiff to be a credible witness. He impressed me as reliable and honest. MRS TRACEY HARRIS

Mrs Harris was on the middle railway platform when she heard an impact and then saw something in the air. She immediately ran up over the rail overpass and down to where she saw the plaintiff lying on the road. She thought it would have taken her no more than a minute to reach him. Mrs Harris observed a red car in the right-hand lane (facing the direction of Brisbane) and a blue car in the left-hand lane. The plaintiff was lying on the road way "well away from the cars", approximately 8 metres beyond the pedestrian crossing - the distance of about 4 of the posts supporting the security fence.

The plaintiff was on his side making "a gargling noise" and was bleeding. Mrs Harris asked the plaintiff his name. She said-

"I thought he said his name was Michael Fox, it wasn't, he said it was Michael Ross, and then it was, like, it was, ´what the bloody hell happened?', that word, or something like that, or, ´what the hell happened, a little green man', and he said ´the little green man' about four times, I think it was, and that was all he said and then it was more trying to - trying to just talk to him to keep him awake."

Mrs Harris was cross-examined with a view to attempting to obtain a concession that the conversation concerning "the green man" took place quite some time after Mrs Harris reached the plaintiff on the roadway. At one stage this exchange occurred:-

"But a period of minutes went past before you had any conversation with him? --Yeah.

On the whole of her evidence, I conclude that the first part of the conversation in which the green man was mentioned took place shortly after Mrs Harris reached the plaintiff and that 5 minutes is very much an outside estimate of the time which elapsed between the conversation and the accident.

The defendant was born on 26 November 1968. She was 25 at the date of the accident and was visiting medical practitioners in the course of her employment as a medical sales representative. She said that: she saw the traffic lights probably half the distance between the turn and the lights; the lights were clearly visible, she stayed in the right-hand lane; she was travelling "between 50 and 60 klms per hour" by the time she got to the point of the accident. (She corrected that to "about 50 klms").

She said that as she approached the pedestrian crossing she saw a man on the left-hand side:-

"He was probably maybe a metre or so, a couple of metres from the actual footpath and he was walking, so that's why I can't really say the distance and he was just off the kerb and he was walking towards the road . . . I thought the fellow was going to - he was walking at such a pace that I thought he was going to step - it looked like he was about to step onto the road . . . I remember taking my foot off the accelerator or halting, not braking but just getting a fright because it looked like he was going to keep coming across the road, and that's what prompted me to look at the light . . . ."

She said that she had eye contact with the pedestrian on the left of the road and that, maintaining her hands on the steering-wheel, she moved her index finger to point in the direction of the traffic light. She said she looked at the traffic light and noticed it was green at the time of observing the pedestrian on the left of the road and thinking that he might step onto the roadway.

"He was walking very quickly. He was probably about two metres [from the crossing] and then he just kept walking, so I can't say an exact distance but he was quite close to the road already when I saw him."

She estimated that it would have taken two seconds between the time when she first saw the pedestrian and when he stepped onto the roadway and stepped back again.

In cross-examination she said that the actions of the pedestrian-

". . . prompted me to look up to the light because I thought for a second that the light might have - you know, there was something wrong because I looked straight up to the light and that was the signal. Because this fellow was about to step onto the road, I signalled to him that it was a red light - a green light, sorry --

In fact, it was a red for you, wasn't it? -- Well, he prompted me to look up and it was a green light . . . the only reason I know it was a green light was because the fellow on the left had stepped on the road which promptly made me look and double check what I was doing as well."

"The only reason I know I didn't go through a red light is because of the fellow on my left - hand side."

She didn't see the plaintiff until after her vehicle had struck him. The defendant was somewhat ambivalent about the speed she had reached at the time of impact. I find that she accelerated up the incline towards the lights, and had reached a speed of approximately 60 klms an hour by a point some 10 metres from the lights.

If the defendant took her foot off the accelerator between that point and the point of impact any decrease in speed would have been minimal as, by that time, the roadway was flat or virtually flat. That point at which she says she ceased accelerating was approximately at the thick white unbroken line across the roadway which marks the point beyond which cars should not proceed in the event the road signal shows red. I consider the plaintiff to be a much more reliable witness than the defendant.

Mr Hogan was born on 28 April 1951. He was a supervisor with SEQEB. He made some notes about three-quarters of an hour after the accident and after he had arrived at his place of work. He refreshed his memory from those notes for the purposes of giving his evidence. There was no evidence as to the extent or quality of the notes. It is reasonable to infer however, that the notes contained what Mr Hogan regarded as his important observations at the time of the incident. He estimated that it was "not quite a hundred metres" from the intersection to the traffic lights. He said that-

· he was probably about 60 metres from the traffic lights when he became aware of their colour and they were then green;

· he maintained a periodic observation of the lights and did not notice any change in colour;

· "there was a person running down the pedestrian overpass which passes over the highway." (A short while later he said "he was moving rather quickly, I would say he was nearly running, yeah.")

· the position of the person on the ramp did not cause him any concern;

· he observed a person on the left-hand side of the road "just walking up to the intersection and then more or less walked onto the intersection, very close to it ... he stepped out and then stepped back."

· at the time the pedestrian stepped onto the road he looked at the lights again and observed that they were green;

· he did not notice the defendant's vehicle slow at any stage prior to the impact.

He was asked what he observed after observing the pedestrian step back off the roadway. He replied "then the - a figure just came out from the right and I am afraid the other car - well, the figure ran into the car or hit the car, anyway." (emphasis supplied)

He had not observed the person on the right of the road exit from the overpass or walk along the footpath to the traffic light and the point of entry to the pedestrian crossing. There was no obstacle to his being able to have kept the figure on the right road under observation if he had so desired to do so.

"The most you ever saw him do was moving quickly or moving briskly; do you agree with that?"

I do not doubt that Mr Hogan gave his evidence truthfully. However, I have reservations about the general reliability of his recollection.

THE ADMISSIBILITY OF THE PLAINTIFF'S STATEMENTS SHORTLY AFTER THE ACCIDENT

The plaintiff's statements to Mrs Harris whilst he was lying on the roadway are hearsay, and will be admissible only if they can be said to have formed part of the res gestae. In Sydney Electricity v. Giles (1993) NSW CCR 700 Kirby P. reviewed at some length recent authorities on the res gestae principle including Pollitt v. The Queen (1992) 174 CLR 556; Walton v. The Queen (1989) 166 CLR 203; Vocisano v. Vocisano (1974) 130 CLR 267 and Ratten v. The Queen (1972) AC 376. He concluded from his review that-

"The foregoing authorities make clear the preconditions for the admissibility of hearsay evidence under the res gestae Rules. An out-of-court statement will be admissible as part of the res gestae, and hence admissible as capable of proof of that which it asserts, if the statement was made in circumstances:

1. which are approximately, if not exactly, contemporaneous with the event or transaction the subject of a Court's inquiry; and

2. which provide an assurance of the proper reliability and veracity of the statement. Such an assurance will ordinarily arise where:

(a) the statement is spontaneous or contemporaneous with the event or transaction the subject of a Court's inquiry; or

(b) the statement is made by the maker while involved in the event or transaction the subject of the Court's inquiry."

I adopt those observations. The circumstances under consideration were such as to "provide an assurance of the reliability and veracity of the statement (s)."

At the time of making the "green man" statements, the plaintiff was lying on the roadway in the position in which he had come to rest after being struck by the defendant's vehicle. He was seriously injured, incapable of lucid conversation, and was uttering, in a rather cryptic way, the thoughts which may reasonably be considered to have been those uppermost in his mind.

In Eaton v. The Nominal Defendant (C.A. 16 October 1995, unreported) the court upheld a finding of inadmissibility of a statement by an injured person made to motorists who offered him assistance after a motor vehicle accident. The statement was made about 10 minutes after the collision had occurred. The plaintiff had lain on the roadway where he had fallen for about 5 minutes and had then moved himself to the edge of the road. He attracted the attention of those who came to his aid by waving his helmet. At the time when contact was first made the plaintiff was "doing a lot of swearing, going crook at the fellow that run him off the road ....". In other words, he was putting forward an account of how the accident had occurred.

In Giles, the plaintiff was working on one-side of an electricity switch-box. A workmate was working on the other out of eyesight. The plaintiff suffered a serious head injury by striking his head on a piece of plant. The evidence, which the trial judge held to be admissible under the res gestae principle, was evidence of the workmate that the plaintiff had come around the switch-box and, whilst holding his head, said "I bumped my head." Kirby P. accepted the correctness of the trial judge's conclusion. Clarke JA, with whose reasons Sheller JA agreed, also accepted that the trial judge had correctly admitted the statement as part of the res gestae. His Honour explained-

"In reaching that conclusion I have accepted Brennan J's. opinion (Pollitt at 580) that the American view which treated the evidence as an exception to the hearsay rule ´on the ground that a guarantee of their truth is to be found in their spontaneity, in the lack of ´time to devise or contrive' and in the distinctive character of utterances made under the influence of excitement' had prevailed."

This expression of opinion is consistent with Lord Wilberforce's statement in Ratten at 391 (which was cited by Brennan J. and which I would adopt as an accurate expression of the guiding principle) that-

"These authorities show that there is ample support for the principle that hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused."

Of course, as this passage makes clear, the fact that the possibility of concoction or distortion is excluded is not sufficient on its own to render the statement admissible. It is necessary also that the statement be made contemporaneously, or approximately contemporaneously, with the happening of the event which is in question. The word ´approximately' is important because it conveys a rejection of the view currently amongst English lawyers when Adelaide Chemical and Fertilizer Co Ltd v. Carlyle [1940] HCA 44; (1940) 64 CLR 514 was decided that res gestae evidence was receivable only as original evidence and "only as one of the parts or details of a transaction not complete when the statements were uttered . ." (Carlyle at 531)."

Applying the principles discussed above, I have concluded that the plaintiff's statements to Mrs Harris are admissible as forming part of the res gestae. The plaintiff was lying on the roadway in the position in which he had fallen when, within three to five minutes after being struck by the defendant's vehicle, he made the subject utterances. The utterances were instinctive in nature and were made without any realistic possibility of the plaintiff's having arrived at his state of mind concerning the status of the pedestrian by application of thought processes which could have amounted to a reconstruction of events, or as a result of anything said to him or observed by him after the event. I regard the test of approximate contemporaneity as having been satisfied.

I find that the plaintiff walked on a green light and that he did so without looking to his left.

The fact that the pedestrian on the other side of the road went to cross the road at approximately the same time, on balance, provides some support for the plaintiff's version of events. The plaintiff's version also derives support from the fact that, in my view, the plaintiff was rather less likely not to look out for approaching traffic if he stepped off the footpath on a green signal.

I do not accept the evidence of the defendant that she saw a green signal at a time within moments of the impact. I have been considerably troubled by the conflict between the evidence of Mr Hogan and that of the plaintiff. But, in the end result, I have decided to accept that of the plaintiff. In so doing I have placed considerable weight on the plaintiff's statements to Mrs Harris. Without that evidence I may have been disposed to find that the plaintiff had not discharged his burden of proof. As I mentioned earlier, I have reservations about the reliability of Mr Hogan's recollections but, unlike the plaintiff and the defendant, he has no vested interest in the outcome of those proceedings. The incident, in the nature of these things, happened very quickly and unexpectedly. Impressions formed by witnesses to such events are capable of being faulty and I conclude that Mr Hogan was probably mistaken.

RELEVANT PRINCIPLES AND THEIR APPLICATION TO THE FACTS

There was a duty on the defendant to keep a watch out for pedestrians who might decide to cross from both right and left.

The defendant was in breach of that duty. The existence of the pedestrian crossing was known to the defendant. She knew or ought to have known that it would be likely to be used frequently by persons going to or from Goodna Station. The defendant ought to have had in mind not only the risk of hitting a pedestrian if she drove through a red light but also the risk that a pedestrian might cross against the lights cf. Yu v. Yu (1996) 23 MVR 85 at 92; Stocks v. Baldwin (1996) 24 MVR 416; Government Insurance Office of New South Wales v. Ergul (1993) 18 MVR 339 (CA - NSW) and Cheetham v. Bou (1989) 10 MVR 242. The need to keep a lookout for those crossing from the right was more pressing, if anything, than the need to watch the movements of those on the left. The defendant's vehicle was in the right hand lane and the ability to take evasive action should a person emerge from the right was thus more restricted. If the defendant had kept a proper lookout, the accident could have been avoided by the defendant's swerving, sounding a horn and/or braking or a combination of some or all of those measures. By accelerating virtually right up to the traffic lights and attaining the speed she did the defendant limited the avenues available to her to avoid injuring a pedestrian who walked immediately on a change of lights or who did the not unexpected act of walking against the lights.

The plaintiff's failure to look to the left before stepping out onto a busy road amounted to a reckless disregard for his own safety. He ought to have had regard to the fact that a motorist, through inadvertence or otherwise, may not have observed a traffic signal. In this case the defendant did have her attention distracted by the movements of a person on the left of the road. There is no evidence that the plaintiff was distracted by anything. In the circumstances, I apportion responsibility for the accident 60% to the defendant and 40% to the plaintiff. In making that apportionment I have in mind the fact that the driver of a vehicle is in a position, if anything goes wrong, of being responsible for inflicting much greater damage than a pedestrian who, if inadvertent, is likely to injure himself alone cf. Cheetham v. Bou at 245 per Priestly J.A.

I was informed at the commencement of the trial that quantum had been agreed between the parties.

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