MVA: jaywalker’s claim dismissed against BCC bus driver

Sharp v Carlin & Anor [2015] QDC 288

The plaintiff’s damages were agreed at $175,000.00 but liability for walking across Adelaide Street, Brisbane between traffic and not at the designated pedestrian crossing was in dispute.

Samios J dismissed the claim finding the bus driver could not have prevented the collision or taken more care than was reasonably necessary:

[32] Therefore, I find as Ms Sharp crossed Adelaide Street and before being struck by the bus she passed between two stationary buses. I find the bus on the immediate left of Ms Sharp would have obscured Mr Carlin’s view of Ms Sharp as she moved from the left hand corner of the stationary bus and into the path of the bus driven by Mr Carlin. I find Ms Sharp did not stop at the centre of the roadway, nor did she stop on the other side of where the bus to her left was, nor did she look to her left hand side to check for traffic coming from her left. I find Ms Sharp took strides that were closer to running than walking as she moved from the centre of the roadway into the path of travel of the bus driven by Mr Carlin. I find the bus was being driven by Mr Carlin at about 15km/h when he saw Ms Sharp. I find Mr Carlin was looking ahead of him and saw Ms Sharp at about an angle of 30 degrees to his right when Ms Sharp emerged in front of the bus he was driving. I find Ms Sharp was about two or three metres away from the bus driven by Mr Carlin when Mr Carlin saw Ms Sharp. I find Mr Carlin drove the bus at about 15km/h over a distance of 143.5 metres in the left hand side of Adelaide Street adjacent to the lane for vehicles travelling south towards the intersection of Adelaide Street and Albert Street. I find that Mr Carlin had no opportunity to see Ms Sharp earlier than he did, nor to take any action to avoid a collision other than the heavy braking he in fact engaged in. Therefore, I find Mr Carlin was keeping a proper lookout and was not driving the bus at a speed that was excessive in the circumstances.

[33] In Derrick v Cheung [2001] HCA 48(2001) 181 ALR 301 the High Court held a motorist who was driving between 10-15km/h, under the prescribed speed limit in a suburban street, and subsequently collided with a child who was 21 months of age who had suddenly emerged from between two parked vehicles, was not guilty of negligence. The High Court held that there was no particular perceivable risk which the appellant should have taken into account but did not. The High Court said at paragraph 13:

Even if the inference which the trial judge drew, that if the appellant’s speed had been slower by a few kilometres per hour she would have been able to avoid the collision, was more than mere speculation, it is still not an inference upon which a finding of negligence could be based. Few occurrences in human affairs, in retrospect, can be said to have been, in absolute terms, inevitable. Different conduct on the part of those involved in them almost always would have produced a different result. But the possibility of a different result is not the issue and does not represent the proper test for negligence. That test remains whether the plaintiff has proved that the defendant, who owed a duty of care, has not acted in accordance with reasonable care.

[34] There is no doubt Mr Carlin owed a duty of care to Ms Sharp. However, I find on the evidence before me Ms Sharp has not proved Mr Carlin breached his duty of care to act in accordance with reasonable care.

[35] Even though Mr Carlin said he was looking straight ahead when he was travelling towards the bus stop and Ms Sharp emerged from where he was looking probably at a 30 degree angle, I do not accept that is evidence of a failure to keep a proper lookout. That is, I do not accept for Mr Carlin to be exercising reasonable care he had to have his attention at all times to the right in case someone emerged from between the two buses to his right.

[36] However, Ms Sharp claims that Mr Carlin breached section 141 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009.

[37] That section provided at the time of this accident:

141 No overtaking etc. to the left of a vehicle

(1) A driver (except the rider of a bicycle) must not overtake a vehicle to the left of the vehicle unless—

(a) the driver is driving on a multi-lane road and the vehicle can be safely overtaken in a marked lane to the left of the vehicle; or

(b) the vehicle is turning right, or making a U-turn from the centre of the road, and is giving a right change of direction signal and it is safe to overtake to the left of the vehicle; or

(c) the vehicle is stationary and can be safely overtaken to the left of the vehicle.

Maximum penalty—20 penalty units.

[38] As I understand section 141 subsection (1) paragraph (c) the section exempts a driver driving to the left of a vehicle which is stationary and can be safely overtaken to the left of the vehicle. I find that was the position immediately before the bus collided with Ms Sharp. The bus to the right of Mr Carlin’s bus was stationary and he could safely overtake to the left of that bus.

[39] I consider Mr Carlin did not fail to exercise reasonable care by driving the bus where he did on the roadway, particularly as he was driving it slowly.

[40] In Knight v Maclean [2002] NSWCA 314 the plaintiff sustained injuries when she was struck by the defendant’s motor vehicle as the defendant drove along a road which the plaintiff attempted to cross on foot. The primary judge found in favour of the plaintiff but reduced her damages by 40%. In upholding the driver’s appeal against the primary judge’s finding of negligence, Heydon JA (as he then was) said:

[66] So here, the defendant’s driving was intrinsically careful. He was not exceeding the speed limit; he was moving with the traffic flow; there is no suggestion he was not keeping a proper distance from the car in front; 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 a position than the defendant in Derrick v Cheung, 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 on 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. A finding that the defendant was liable would be to create a form of strict liability, not to recognise a form of liability in negligence.

[67] The trial judge’s conclusion of liability in this case rested on the proposition that the defendant was obliged to “drive in anticipation of a pedestrian crossing the road in such a fashion as to require him to adjust his speed downwards if he and the pedestrian were to continue”. That would have called for a very low speed indeed. Indeed, if the defendant was obliged to drive in anticipation of the emergence of pedestrians like the plaintiff at a fast walk, he would also have been obliged to drive in anticipation of pedestrians emerging at a run, which would call for a lower speed still. Speeds of such slowness are incompatible with the reasonable use by motorists of Parramatta Road, which is a substantial highway between the centre of the city of Sydney and the city of Parramatta.

[68] It is not the law that a driver complying with the minimum requirements of the law of negligence must drive in such a way as to anticipate everything that a pedestrian might do at all stages of every journey, or to be in a position to reduce speed to levels which will avoid any risk of a collision at all stages of any journey. Yet in the circumstances of the present case the trial judge’s test would entail that duty.

[41] In my opinion what Heydon JA said in Knight v Maclean is relevant to the present circumstances. That is, I do not accept that Mr Carlin had to reduce the speed of the bus even further to take into account the possibility that a pedestrian may appear between two stationary buses.

[42] It was suggested by Ms Sharp that Mr Carlin should have been aware of Ms Sharp’s presence because she would have been seen entering Adelaide Street from the western side. I do not accept the evidence supports such a finding. The trial was not really conducted that way.

[43] I was referred by Ms Sharp to Caldwell v Deka (Unreported, Supreme Court of New South Wales Court of Appeal, Kirby, Clarke and Meagher JJ, 16 June 1993) where a pedestrian emerged into a lane of traffic from between stationary vehicles waiting at lights. A motor vehicle travelling 30-40km/h struck the pedestrian causing serious injuries. The motorist agreed that he was watching traffic lights waiting for them to change from red to green. It was accepted there was a tendency for pedestrians near traffic lights to cross between traffic. It was held by majority that the trial judge erred in rejecting the plaintiff’s case that the driver concentrated on the traffic lights to the exclusion of the risk of pedestrians. The majority held in the circumstances, negligence to some degree on the part of the driver, was established. However, in the present matter I consider Caldwell v Deka is distinguishable because I consider in the present matter it has not been demonstrated that Mr Carlin did anything that was a breach of the duty of care.

[44] Also in Stocks & Anor v Baldwin [1996] NSWCA 1 a pedestrian was crossing a busy street, having three lanes on each side of a median strip, some 40 metres from traffic lights. The pedestrian after crossing the median strip moved through banked up vehicles in the middle lane into the curb side lane. She was struck down by the defendant who was driving his car at about 40km/h. The defendant stopped about four metres from the impact. The trial judge found the defendant negligent for the reason that he was travelling at an excessive speed in the circumstances and found the plaintiff contributory negligent for the reason that she did not check, or did not check adequately, whether it was safe to proceed from the middle lane into the curb side lane. He apportioned 40% of the responsibility for the accident to the pedestrian plaintiff. The defendant driver appealed. His appeal was dismissed. The Court of Appeal held the trial judge was entitled to find that the defendant was driving at an excessive speed in the circumstances.

[45] In my view Stocks & Anor v Baldwin is distinguishable from the present matter because there is no evidence Mr Carlin was driving the bus at an excessive speed in the circumstances.

[46] Therefore, I find the plaintiff has failed to prove the first defendant breached his duty of care to the plaintiff in the circumstances.

[47] I therefore dismiss the plaintiff’s claim against the defendants.

 

David Cormack – Brisbane Barrister & Mediator

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