Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Johnston v Stock [2014] NSWCA 147
• Hearing dates: 24 April 2014
• Decision date: 14 May 2014
• Before: Meagher JA at [1]; Barrett JA at [10]; Ward JA at [41]

Decision

1. Appeal allowed.

2. Set aside the judgment and orders of the District Court dated 15 August 2012 and in lieu thereof order as follows:

(a) Judgment for the defendant.

(b) Order that the plaintiff pay the defendant's costs of the proceedings.

3. Order that the respondent pay the appellant's costs of the proceedings in this Court.

4. Order that the respondent have a certificate under the Suitors Fund Act 1953 (NSW) if otherwise qualified.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: TORTS - negligence - road accident cases - liability of drivers of vehicles - duty of care and standard of care owed to pedestrians - pedestrian waiting to cross the road and apparently watching the approaching vehicle - pedestrian walks into the side of the vehicle - pedestrian significantly intoxicated - significance of that factor
• Legislation Cited: Civil Liability Act 2002 (NSW)
• Cases Cited: Derrick v Cheung [2001] HCA 48; 181 ALR 301; Draca v Silva [2012] NSWCA 312; Manley v Alexander [2005] HCA 79; 80 ALJR 413; Marien v Gardiner; Marien v H J Heinz Company Australia Ltd [2013] NSWCA 396; Mobbs v Kain [2009] NSWCA 301; Stewart v Carnell (1984) 2 MVR 147; Vale v Eggins [2006] NSWCA 348; 46 MVR 514
• Category: Principal judgment
• Parties: Kylie Ann Johnston (Appellant); Julianne Rachelle Stock (Respondent)
• Representation: Counsel: R K Rewell SC/J B Turnbull (Appellant); I D M Roberts SC/G Radburn (Respondent); Solicitors: T L Lawyers (Appellant); Bourke Love Lawyers (Respondent)
• File Number(s): 2012/283122

Decision under appeal

• Date of Decision: 2012-08-15 00:00:00
• Before: Neilson DCJ
• File Number(s): 2011/337995

Judgment

1 MEAGHER JA: I agree for the reasons given by Barrett JA and which follow that this appeal should be allowed.

2 The respondent, a pedestrian, was injured in the early hours of the morning on 26 October 2008 when she collided with the appellant's motor vehicle. The appellant was travelling in a northerly direction along Hill Street, East Ballina. At some distance before the point of that collision, the appellant had seen the respondent coming down a footway which led to a kerb side ramp providing access to the roadway on its western side. When the appellant first saw the respondent "walking a bit stumbling a little bit but walking quite fast" down the footway, she slowed the speed of her vehicle to 40km per hour. A short time later the appellant observed the respondent stop at that ramp and look in the direction from which the appellant's car was approaching, still travelling at about 40km per hour.

3 Between the kerb and the traffic lane in which the appellant was travelling, there was an auxiliary lane which was about 2.2 metres wide. This meant that if the appellant stayed within the traffic lane, the respondent had to step off the kerb and walk a distance of 2.2 metres before she could collide with a vehicle in the traffic lane.

4 The primary judge (Neilson DCJ) found that the appellant was negligent:

"... in failing to take the further precautionary steps of flashing her lights, sounding her horn, slowing down further, but, in particular in failing to keep to the right-hand side of the lane to give the plaintiff as "wide a berth" as possible."

The reference to the "lane" is to the traffic lane in which the appellant was travelling and not to the auxiliary lane.

5 During the course of oral argument the respondent's counsel, in my view correctly, did not support the findings of negligence based on the appellant's having failed to flash her lights, sound her horn or keep to the right-hand side of the lane. The evidence did not provide any basis for a conclusion that had the appellant flashed her lights or sounded her horn that would have made any difference whatsoever to what the respondent did so as to justify a conclusion as to factual causation under s 5D of the Civil Liability Act 2002 (NSW).

6 The primary judge's conclusion that the accident would have been avoided if the appellant had kept to the right-hand side of the traffic lane also could not be justified on the evidence. The analysis in support of that conclusion assumed that the appellant continued to travel at 40km per hour after she saw the respondent step from the kerb. That assumption ignored the fact that at the point at which the appellant first saw the appellant step from the kerb the appellant, acting reasonably, applied her brakes. The opinions of each of the experts were given and the trial was conducted on the basis that this was the response which a reasonable driver in the appellant's position would have made. The issue between the experts then became whether the accident could have been avoided, assuming the speed at which the appellant was travelling and that she was keeping a proper lookout. The primary judge held, taking account of the appellant's speed and her distance from the point of impact at the time that the respondent stepped from the kerb:

"I do not believe that there was sufficient time for the [defendant] to have brought her vehicle to a stop from the moment that she perceived the plaintiff to be moving off the ramp until she collided with the defendant's vehicle."

7 The respondent did seek to support the primary judge's finding that the appellant was negligent in not "slowing down further". She did so on the basis that the appellant should have slowed to a speed which was less than 40km per hour when she first saw the respondent walking down the footway.

8 At that point it may be accepted that the driver's duty to exercise reasonable care required that the appellant control the speed of her vehicle so as to be able to take reasonable steps to react to what might happen in the vicinity of it: Manley v Alexander [2005] HCA 79; 80 ALJR 413 at [12]. The appellant discharged that duty. At the point at which she first saw the respondent there was a risk that the respondent might continue down the footway and onto the roadway without stopping. The appellant appreciated that risk. In response to it she slowed her vehicle to 40km per hour. Her unchallenged evidence was as follows:

"Q: You told his Honour that you slowed down when you saw this person?

A: Yes.

Q: Why did you slow down?

A: Because I thought that she was walking at a fast pace and stumbling and that was quite early in the morning and unusual to see somebody walking out at that time.

Q: If she walked straight onto the road would you have been able to stop?

A: Yes.

Q: As you approached you saw her look at you and stop on the side of the road?

A: Yes.

Q: Did you form a view as to what she was doing in your mind?

A: Yes.

Q: What was that view?

A: That she was waiting for me to pass."

9 Travelling at 40km per hour the appellant could have stopped if the respondent had continued onto the roadway. The respondent did not do that but instead stopped at the kerb and looked towards the appellant's vehicle. At that point, for the reasons explained by Barrett JA, there was no reason for the appellant to reduce further her speed.

10 BARRETT JA: At about 2.25am on Sunday, 26 October 2008, the respondent suffered injury when she walked into the side of a Ford Festiva motor vehicle that the appellant was driving along Hill Street, East Ballina.

11 The respondent, as plaintiff, sued the appellant, as defendant, in the District Court claiming damages for negligence. The case pleaded by the respondent was that the appellant was negligent in that she:

(a) failed to keep a proper lookout;

(b) drove at a speed excessive in the circumstances;

(c) failed to brake, steer or otherwise avoid colliding with the appellant;

(d) failed to accord precedence to a pedestrian on the roadway;

(e) failed to sound any warning; and

(f) failed to apply the brakes in time to avoid the collision, or at all.

12 The appellant denied that she was negligent as alleged and, as an alternative, pleaded contributory negligence on the part of the respondent.

13 Neilson DCJ held that the appellant was guilty of negligence and liable in damages accordingly. He also held that the respondent was negligent and reduced the damages awarded to her by 75% on account of contributory negligence.

14 The appellant contends on appeal that the judgment in favour of the respondent should be set aside and that there should be judgment for the appellant. She says that the primary judge erred in law in finding her negligent without properly considering the relevant duty of care owed and in failing to make a correct assessment of the reasonableness of her conduct.

15 The site of the incident was depicted in several photographs admitted into evidence. Hill Street runs generally north-south. The appellant was driving in a northerly direction on the approach to a hill. The respondent was walking on the western side of the street towards the south, that is, downhill and to the appellant's left. She was on a concrete path adjacent and parallel to the roadway. The concrete came to an end (and was replaced by a grass surface) at a point where a pedestrian ramp was installed in the kerb for the convenience of persons wishing to cross to the eastern side of Hill Street. A pedestrian refuge was located in the middle of the road opposite the ramp. A sign indicating a speed limit of 60 kph stood on the western side of the road a short distance to the south of the pedestrian ramp.

16 The import of the respondent's evidence may be shortly stated. After walking down the hill on the concrete path and reaching the pedestrian ramp, she stood on the ramp, clear of the roadway but facing it, preparing to cross the road. She looked to the right (that is, to the south) to see if any vehicle was approaching and saw nothing. She looked to the left (north) and saw an approaching vehicle some distance away. She then started to walk towards the pedestrian refuge in the middle of the road. After she had taken a number of steps (she did not remember precisely how many, but thought it was probably two), an event she could not explain occurred and her next recollection was of being tended by persons as she lay on the road.

17 The appellant gave evidence that, as she drove along Hill Street towards the north, she saw the respondent walking in a "zigzag" or "stumbling" manner on the footpath to her left. The appellant was about 100 metres away when she first saw the respondent. The appellant kept the respondent under observation as the respondent walked downhill. The appellant reduced speed from about 50 kph to about 40 kph. She saw the respondent walk on to the pedestrian ramp at the edge of the footpath, stop, turn, look in the direction of the appellant's approaching vehicle and apparently fix her gaze on the vehicle. Seeing the respondent stop and look towards her in that way, the appellant assumed that the respondent would remain stationary on the kerb and wait for the car to pass. The appellant maintained her reduced speed of 40 kph, maintained her direction (that is, did not move closer to the centre of the road) and did not flash her headlights or sound her horn. The appellant then saw the respondent take two large, quick steps towards the car. She braked as this movement began. The respondent walked into the forward section of the car's front passenger door and the windscreen.

18 Both parties were on the way home from social functions when the incident happened. The appellant, who was four months pregnant, had not consumed alcohol. A breath test administered to her soon afterwards returned a zero result. A blood sample was taken from the respondent at hospital at 4.17am, that is, almost two hours after the incident. Analysis of the sample disclosed a blood-alcohol level of 0.274g of alcohol per 100ml of blood. Pharmacological evidence was that the respondent's most likely blood-alcohol concentration at the time of impact some two hours before the sample was taken was 0.302g per 100ml of blood, that is, in the range 0.293g to 0.321g which is consistent with the consumption of about 190g (range 159g to 251g) of alcohol or approximately nineteen standard drinks - a quantity far exceeding the eight stubbies of mid-strength beer and one shot of Sambuca that the respondent told police she had consumed between about 4pm and 1am.

19 The primary judge made findings about the effect of the blood-alcohol concentration on the plaintiff's capacity to function. Expert evidence was that, at a concentration of around 0.300g per 100ml, "most individuals would be stuporous", this being "close to the mean lethal level for non-tolerant individuals", while the lethal level for tolerant individuals is between 0.450g per 100ml and 0.600g per 100ml. In addition:

"[A]lcohol exerts its major effects on the structures of the brain which are responsible for balance and co-ordination. Alcohol also reduces peripheral sampling efficiency and the ability to divide attention among several inputs is often reduced to the point of apparent confusion. Sometimes an alcohol-affected pedestrian does not make any attempt to avoid the oncoming motor vehicle or may stop and partially face the vehicle. On other occasions, the pedestrian starts to run or walk across the road, realises that a motor vehicle is bearing down on her and either 'freezes' or runs on or back into the path of the vehicle."

20 Having referred to (and accepted) this scientific evidence, the primary judge compared accounts of the event given by the respondent to police on 3 November 2008 (that is, almost two weeks after the event) and in an insurance document completed on 12 December 2008. In the police statement, she said that she had seen a car approaching from the left "a fair distance away" but nothing coming from her right. In the insurance document, she said:

"A car was coming from my right over the hill and as I was watching that vehicle another vehicle coming from my left hit me."

21 The judge noted that there was clear confusion of left and right and said:

"It may well be, on the evening in question, that the plaintiff looked to her right and saw the plaintiff's [sic; scil: 'defendant's'] vehicle and looked to her left and saw nothing and then perceiving that the vehicle, which was on her right, was in fact on her left, proceeded to cross the road, thereby colliding with the defendant's vehicle."

22 On the issue of standard of care, the primary judge said, after referring to Manley v Alexander [2005] HCA 79; 80 ALJR 413 (at [11] - [12]):

"Accordingly, it can be seen that the driver of a motor vehicle required to drive giving reasonable attention to what is happening not only on the roadway but near the roadway that may present a source of danger. The duty of care of a driver of a vehicle is not limited only to those on the carriageway but also to those in the vicinity of the roadway, that is, those who may be on a footpath or verge or kerb and yet might enter onto [sic] the carriageway."

23 The appellant says that this formulation is too wide and, from her perspective, too onerous. In Manley v Alexander itself, Gummow, Kirby and Hayne JJ said (at [12]):

"But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events."

24 The extended version offered by the primary judge is said by the appellant to suppose that drivers must always drive on the assumption that persons on the side of the road will, for no apparent reason, enter on to the roadway in front of the vehicle.

25 There is merit in that criticism. A motorist owes a duty of care to persons on and near the road on which he or she is driving. In the light of s 5B of the Civil Liability Act 2002 (NSW), due discharge of the duty requires the exercise of reasonable care (and the adoption of reasonable precautions) to avoid risk of harm to such persons. The exercise of reasonable care involves a degree of anticipation of what others may do - including that they may act carelessly or, for some other reason, in a way that endangers them. The required standard of care is influenced accordingly, but always by reference to the precise circumstances. Thus, for example, the care required upon seeing a child on the footpath under the close control of an adult differs from that called for by sight of an unattended child whose ball has bounced on to the road. Yet another degree of care is sufficient when a child obscured by parked cars darts without warning on to the road: Derrick v Cheung [2001] HCA 48; 181 ALR 301.

26 A valuable summary of the principles of the law of negligence as they apply to motorists is to be found in the recent judgment of Meagher JA in Marien v Gardiner; Marien v H J Heinz Company Australia Ltd [2013] NSWCA 396 at [33]-[37]:

"The duty of the driver of a motor vehicle to users of the roadway, including pedestrians, is to take reasonable care for their safety having regard to all the circumstances of the case: per McHugh J in Vairy [Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422] at [26]. Under the common law and the Civil Liability Act, the standard by which reasonable care is measured is an objective and impersonal one: Cook v Cook [1986] HCA 73; 162 CLR 376; s 5B.

The question whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant's circumstances would have done, if anything, by way of response to any foreseeable risks of injury or sources of danger to other road users: Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47-48; Vairy at [60], [105], [124] and [126]; New South Wales v Fahy [2007] HCA 20; 232 CLR 486 at [57]. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in those circumstances: s 5B(1).

Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident: Derrick v Cheung [2001] HCA 48; 181 ALR 301 at [13]. The exercise of reasonable care requires, as the majority observed in Manley v Alexander at [11], 'reasonable attention to all that is happening on and near the roadway that may present a source of danger'. That in turn requires 'simultaneous attention to, and consideration of, a number of different features of what is already or may later come to be, ahead of the vehicle's path'.

The driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events. As Hodgson JA (Ipp JA and Gyles AJA agreeing) said in Hawthorne v Hillcoat [2008] NSWCA 340 at [47], the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle.

Nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the 'limits of visibility and control' so as to be able to react to whatever ventures into the vehicle's path: per Ipp JA (Heydon and Santow JJA agreeing) in Cole [South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; 55 NSWLR 113] at [61], citing Grove v Elphick (1985) 2 MVR 74 and Morris v Luton Corporation [1946] 1 KB 114. Derrick v Cheung was such a case. An unattended infant child emerged from between two parked cars and darted into the path of the vehicle. The driver was not negligent despite the fact that he was travelling at a speed which did not enable him, upon seeing the child, to avoid the collision."

27 In the context of the present case, the appellant correctly calls in aid, on the issue of standard of care, the observation of Kirby P in Stewart v Carnell (1984) 2 MVR 147 at 151 that negligence must imply a want of care to prevent foreseeable injury and that there are limits to which the irrational behavior of pedestrians, in apparent disregard of their own safety, should reasonably be anticipated by a reasonably careful motorist. Derrick v Cheung (above) provides a clear illustration of this.

28 In Draca v Silva [2012] NSWCA 312, a case concerning a collision between two vehicles travelling in the same direction, Tobias AJA said that a motorist's duty to keep a lookout did not

"require the respondent to keep the appellant's vehicle under constant surveillance in order to be able to react in the event that the appellant decided at some indeterminate point on the roadway to attempt to move in front of the respondent's truck".

29 The position the appellant takes on appeal is that, having regard to considerations of the kind just mentioned, the expectations to which the primary judge found her to be subject went beyond things that a reasonably careful motorist ought reasonably to have anticipated. The respondent had stopped on the pedestrian ramp and was seen by the appellant to act in the way to be expected of any rational and careful pedestrian in that situation: she looked in the appellant's direction, apparently searching for approaching traffic, and, to the appellant's observation, fixed her gaze on the appellant's vehicle. Having done that, however, the respondent departed from the standard of behaviour to be expected of a rational and careful pedestrian: instead of waiting for the vehicle on which her gaze was apparently fixed to pass, she stepped out from the kerb before the path ahead was clear and when the appellant's vehicle was in such proximity that she walked into the side of it. Counsel for the appellant says that, in the context of what had happened immediately beforehand, the appellant was not required to foresee the irrational action of stepping out on to the roadway in that way and at that time.

30 Counsel for the respondent submitted that this characterisation of matters is too narrow and that the requirement of reasonable care was shaped by events preceding the point at which the appellant stopped on the pedestrian ramp and looked in the direction of the appellant's approaching vehicle. The appellant had seen the respondent walking downhill towards the pedestrian ramp in a fashion that was described as "zigzag" or "stumbling". This, the respondent says, should have alerted the appellant to the possibility that the respondent might be adversely affected in some way and might not act rationally. The appellant said in her evidence that it had crossed her mind that the respondent might be drunk.

31 In my opinion, any anticipation of the unexpected or irrational that the respondent's gait might have made it incumbent upon the appellant to adopt was not required to be maintained once the respondent took the expected and rational step of stopping and looking for approaching traffic. The position, at that point, was the equivalent of that which would have prevailed had a parent been seen to restrain the child whose ball had bounced on to the road. Circumstances had changed in such a way as to cause any apprehension of the unexpected or irrational to be dispelled.

32 The respondent argued that the fact that the respondent appeared to be behaving rationally when she reached the ramp did not provide a basis for a conclusion that the appellant had not been negligent. It was contended for the respondent that the breach of duty occurred at a point prior to the respondent reaching the ramp, when the appellant observed the respondent walking down the hill in an unusual fashion suggestive of the possibility that the respondent was drunk and the appellant did not reduce her speed to something less than 40kph. The respondent contended that the appellant should, at that point, slowed to a speed that would have enabled her to stop if the respondent decided to "jump out" on to the road. The reasonable response, it was said, would have been for the appellant to reduce speed to a walking speed since a collision at that speed would not be likely to cause injury. The latter submission involves impermissible hindsight reasoning: Mobbs v Kain [2009] NSWCA 301. The fact that injury would not have been suffered had the appellant been driving at a walking speed is not to the point. Nor was the argument (not pressed on appeal) that if the appellant had not braked when she did but moved to the right the car would not have been at the point of the collision when the respondent stepped out onto the road.

33 The fact that the respondent was grossly under the influence of alcohol and that it crossed the appellant's mind that the respondent might be drunk did not alter the standard of care expected of the appellant. That is the effect of s 49(1)(c) of the Civil Liability Act, a provision to which the primary judge made brief reference. That section states that the fact that a person is or may be intoxicated does not of itself increase or otherwise affect the standard of care owed to the person. In Vale v Eggins [2006] NSWCA 348; 46 MVR 514, as in this case, a motorist had observed that a pedestrian (who, as it turned out, was drunk) was stumbling. It was held that, having regard to s 49(1)(c), the drunken state of the pedestrian was irrelevant so that the applicable standard of care was, in effect, that called for by sighting of a stumbling person who was not drunk.

34 In this case, therefore, the required standard of care was that engendered by observing a pedestrian progress down the hill in a "zigzag" or "stumbling" fashion, come to a halt on a pedestrian ramp at the side of the road, look right and apparently fix her eyes on the approaching vehicle in the manner of someone waiting for it to pass.

35 The primary judge found that there were, in terms of s 5B of the Civil Liability Act, several precautions that could and should have been taken against risk of harm to the respondent, namely, flashing the headlights, sounding the horn, slowing the vehicle and keeping further to the right hand side of the lane in which the vehicle was travelling.

36 The appellant emphasises the fact that, having slowed from 50 kph to 40 kph, she saw the respondent looking in the direction of her car. She was entitled to think, therefore, that the respondent had seen the car and would act accordingly. There was no need to flash the lights or sound the horn. These are things done to attract the attention of someone whose attention needs to be attracted. A person whose gaze is apparently on the approaching vehicle is not someone whose attention needs to be attracted. On the hearing of the appeal, the respondent did not seek to uphold the aspects of the judge's decision on breach of duty concerning flashing of headlights and sounding of the horn. Those aspects are unsupportable. So too with further braking of the vehicle and moving it further towards the centre of the carriageway. Those precautions were not called for in the interests of due care towards the pedestrian standing on the kerb apparently watching the approaching vehicle and waiting for it to pass.

37 In any event, the primary judge's finding that the additional precautions (in the form of a different manner of driving) could have avoided the risk of harm does not of itself warrant any conclusion that the appellant should have taken the additional precautions: Civil Liability Act, s 5C.

38 The appellant, upon seeing the respondent, slowed from 50kph to 40kph and kept her under observation as she stood still on the ramp apparently watching the approaching car until it was so close to her that her own two large, quick steps - taken without warning and in circumstances that the appellant was not required to anticipate - brought her into contact with the side of it.

39 The primary judge's conclusion of breach of duty on the part of the appellant was erroneous. There was no failure to exercise reasonable care.

40 I propose orders as follows:

1. Appeal allowed.

2. Set aside the judgment and orders of the District Court dated 15 August 2012 and in lieu thereof order as follows:

(a) Judgment for the defendant.

(b) Order that the plaintiff pay the defendant's costs of the proceedings.

3. Order that the respondent pay the appellant's costs of the proceedings in this Court.

4. Order that the respondent have a certificate under the Suitors Fund Act 1953 (NSW) if otherwise qualified.

41 WARD JA: I agree with Barrett JA that the appeal should be allowed, for the reasons his Honour gives, and with the additional observations of Meagher JA.

**********

Amendments

16 May 2014 - Typo
Amended paragraphs: 1, 41 - Delete "dismissed", insert "allowed"

16 May 2014 -

Decision last updated: 16 May 2014