WALKER v BAKER

Court of Appeal (NSW)|1998-03-06|Before: Cole JA, Handley JA, Sheller JA

WALKER v BAKER SUPREME COURT OF NEW SOUTH WALES - COURT OF APPEAL

HANDLEY JA, SHELLER JA and COLE JA 6 March 1998 [1998] NSWCA 251

MOTOR Vehicle Accident - Held: Trial judge's decision was justified given the evidence at trial.

The respondent approached the intersection in the centre lane of Bobbin Head Road intending to make a right hand turn into Burns Road at the intersection which was controlled by traffic lights. It was about 7.25pm in the evening, it was dark and vehicles approaching the intersection had their headlights illuminated. The respondent had entered the intersection at which time the lights facing him had turned to amber. He had slowed to a crawl and was concentrating upon a vehicle approaching him inBobbin Head Road from the north watching to see if that vehicle would enter the intersection through the amber light or would stop. At that time the appellant, and her brother, Mr Wilson, as Downs DCJ found, 'ran diagonally from behind the defendant's vehicle into its path and the defendant had no reason to suspect that anyone would be so foolish to do so in the circumstances, and he did not have any opportunity to stop any faster than he did'. Thus a verdict was entered for the defendant/respondent.

The circumstances giving rise to the appellant and her brother running into the intersection were that she, with her husband and her brother and sister-in-law, had been travelling in Bobbin Head Road in a southerly direction when, as they approached the intersection with Burns Road, they saw a possum in distress somewhere in the centre of the intersection. The appellant's husband drove through the intersection and stopped about 30 metres past it. The appellant and Mr Wilson alighted from the vehicle and ran back into the intersection to endeavour to rescue the possum. The trial judge found that in so doing they 'ran from diagonally behind the offside of the respondent's vehicle into his path'.

The appellant has contended that finding of the trial judge was not justified on the evidence. In my judgment that contention should be rejected. There was plain evidence which the judge was entitled to accept that the appellant and Mr Wilson ran at a diagonal angle from a point behind the respondent's vehicle and directly in front of his vehicle when he was proceeding at a crawl preparatory to making a right hand turn in the middle of the intersection.

First, the appellant's husband, Mr Walker, gave evidence that his wife and Mr Wilson commenced to cross Bobbin Head Road 8 or 9 metres behind the point where he had stopped his vehicle some 30 metres past the intersection and did so

at an oblique angle to enter the intersection.! That necessarily meant they approached the respondent's vehicle diagonally from behind it. Second, a Mr Peter Callaghan, a passenger in a vehicle driven by a Miss Rouse who was travelling west in Burns Road noticed that, unusually, the woman he saw going into the intersection was crossing the road 'diagonally'.? He also noted that the respondent's vehicle was 'barely moving at all. If it was moving at all'. He thought the respondent's vehicle was turning when the appellant 'walked straight into a vehicle? ... straight in front of it'.4 Miss Rouse, saw people in the intersection but gave no evidence concerning their path prior to being hit by the vehicle.

Third, another independent witness, Ms Sheridan, who was travelling south in Bobbin Head Road intending to turn left into Burns Road said she saw two pedestrians enter the intersection. She said:

They were coming straight ahead of me and to the driver's right they were coming from his right hand direction from that side of Bobbin head Road, so it was opposite to me and on his right hand side.

Q. Were they coming at right angles to him or some different angle? A. They were coming diagonally from that side of the road to the opposite diagonal side. Q. So that along a path broadly diagonally across the intersection, is that what you are saying? A. That's right.'5 She thought the two pedestrians had alighted from their car, moved away from it, returned to it and then started to walk across the road. It seems undoubted that

she was mistaken in this respect as the trial judge noted. When asked to describe what she saw she said:

As they walked diagonally across the road, the four-wheel drive started to move forward and at the minute the people turned, they turned into the car. As it was coming they were going like that, so that it was like that, and he moved - he stopped immediately and the fellow who was with the girl jumped clear. So he was going fairly slowly, it was more the girl turned into the car and hit her head on the bar.

Later she said: 'my impression was as the car moved forward the girl walked into it'.

The appellant, who suffered injuries had no recollection of the events but her brother, Mr Robert Wilson, who went with her into the intersection was not injured and gave evidence. He maintained that he and his sister commenced to cross from a point on the kerb adjacent to the intersection. He did not agree that they entered the intersection from a point within Bobbin Head Road. A diagram which he marked showed the angle of approach as being at a slight diagonal angle to the position of a vehicle stopped to make a right hand turn from the centre of the intersection.

The respondent, Mr Baker, did not see the appellant and her brother until they suddenly appeared in front of his vehicle. He said 'the woman appeared in front of my - well it was directly in my side of the vehicle, on my side of the vehicle, and the man

Appeal Book, p222-223. Appeal Book, p.248. Appeal Book, p.246. Appeal Book, p.247. Appeal Book, p.296.

was on the passenger side'. He said he stopped immediately after the pedestrians were struck. He thought he had travelled about a metre between seeing the appellant and striking her.

In my view the evidence of Mr Walker, Mr Callaghan and MS Sherdian establishes, as the trial judge found, that the appellant and her brother approached diagonally from the rear offside of the respondent's vehicle, and that they were walking quickly or running.

The second contention was that the trial judge should have found the respondent failed to keep a proper lookout. In my view that contention also fails. The trial judge found, correctly, that the respondent was moving forward at a slow speed, concentrating on oncoming traffic whilst in the middle of an intersection preparatory to making a right hand turn. It was his obligation to do so. He could not have anticipated that persons would run into a busy intersection diagonally from the rear of the offside of his vehicle. The trial judge found that there was no way that the respondent could have avoided the accident. I respectfully agree.

Counsel for the appellant: B M J Toomey QC/M Cummings Solicitors for the appellant: Emil Ford and Co

Counsel for the respondent: J D Hislop QC/R F Sutherland

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Judgment (23 paragraphs)

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