Bird v McShea[1999] QCA 136

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No.  4488 of 1998

Brisbane

[Bird v McShea & Suncorp]

BETWEEN:

TRISTAN JAMES BIRD

(Plaintiff)

Appellant

AND:

SARAH LOUISE McSHEA and

SUNCORP INSURANCE AND FINANCE

(Defendants)

Respondents

McMurdo P

Pincus JA

Fryberg J

Judgment delivered 20 April 1999

Joint reasons for judgment of McMurdo P and Pincus JA, separate reasons of Fryberg J concurring as to the orders made.

APPEAL DISMISSED WITH COSTS.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No.  4488 of 1998

Brisbane

Before  McMurdo P

Pincus JA

Fryberg J

[Bird v McShea & Suncorp]

BETWEEN: 

TRISTAN JAMES BIRD

(Plaintiff)

Appellant

AND:

SARAH LOUISE McSHEA and

SUNCORP INSURANCE AND FINANCE

(Defendants)

Respondents

JOINT REASONS FOR JUDGMENT - McMURDO P AND PINCUS JA

Judgment delivered 20 April 1999

1. This is an appeal from a District Court judgment dismissing the appellant's claim for damages for personal injuries suffered in a motor vehicle accident. 

2. The appellant, his sister, a friend Skye Houlihan, and Sarah McShea ("the respondent") were drinking at the respondent's mother's home at Shea Street, Scarborough during the early evening.  At about 10 p.m., the respondent's mother came home and noticed that her daughter and friends were affected by alcohol.  She had no doubt that the respondent and friends were aware that the friends were no longer welcome in her home.  The appellant and friends left on foot.  The respondent took her mother's car keys and drove her mother's car along Shea Street turning left into Scarborough Road.  She drove along Scarborough Road in a northerly direction.  The appellant and friends were walking north along the footpath on the left hand side of Scarborough Road which intersected with Peterson Street on the right hand side, shortly after Shea Street intersected on the left.  The evidence of the respondent as to what then took place differed from that given by the appellant and his witnesses.

3. The learned trial judge found that the appellant was drunk and the respondent was also affected by alcohol with a blood alcohol reading of 115mg per 100ml of blood.  His Honour noted:

"Neither the [appellant] nor the [respondent] nor the other two teenage witnesses impressed me as being particularly credit-worthy."

4. His Honour was impressed with an independent witness called by the respondent, Narelle Don, who was returning from work at about 10.15 p.m. to her home in Anderson Street, off Scarborough Road.  She was driving north along Scarborough Road: near the intersection with Peterson Street she saw three teenagers run across the road towards the traffic island near the intersection.  She slowed down as she was aware there was a school nearby and was concerned other young people might run out from the school.  As she got closer, she saw the respondent's car doing a U-turn in Scarborough Road at the Peterson Street intersection; one of the teenagers jumped out from the island and waved his hands in front of the car which struck him.  The respondent's car was travelling at about 20 kph and the appellant was standing about 2 feet out from the traffic island when he was hit.  The car was no more than 10-15m from the appellant when he jumped in front of it.

5. His Honour accepted Ms Don's evidence that the appellant and friends ran across the road to the median strip.  He concluded that the respondent did not anticipate their presence on the median strip at or near the intersection with Peterson Street, and that there was no reason why she should have done so as, when she last observed them, they were walking at some distance from the intersection and on the opposite side of the road.  He also accepted Ms Don's evidence that the respondent executed a U-turn in a normal fashion at an appropriate speed and that the appellant jumped in front of the respondent's vehicle so that she had insufficient time to stop before hitting him. 

6. Although his Honour was aware of the respondent's lack of sobriety, he concluded:

"...there is no basis for assuming that a sober and careful driver in the position of the [respondent] would have been able to avoid colliding with the [appellant] when he suddenly jumped in front of her car, even on the basis that such a driver knew the [appellant] was in the general vicinity, and was drunk."

7. His Honour concluded the appellant had failed to establish negligence on the part of the respondent.

8. Mr D Fraser Q.C. and Mr Trotter, who appeared for the appellant and who have put their submissions as convincingly as the facts of the case allow, submit that the respondent knew the appellant and friends had seen her as she saw them wave to her and she also knew that the appellant was drunk.  They submit she therefore ought to have foreseen the real possibility that the appellant and friends could follow her car across Scarborough Road as she performed the U-turn and position themselves on the median strip.  In negotiating the U-turn, she should have driven slowly enough to keep a lookout for the appellant and friends on the median strip so as to be able to avoid hitting the appellant, who could foreseeably act irrationally or foolishly because of his drunkenness.  She was negligent in failing to foresee the appellant might behave irresponsibly and should have taken precautions to ensure she could stop in time, should he jump out in front of her car. 

9. Whilst the duty of care owed by motorists to pedestrians is a high one (see Nosworthy v Berg^[1] and Kilminster v Rule)^[2] whether negligence is established must depend on the facts of each case.

10. Mr D. Fraser Q.C. placed some reliance on Johns v Cosgrove.^[3]  In that case, a motorist who saw the plaintiff swaying and holding onto a bus stop sign at the edge of a busy highway, realised he was drunk, then averted her eyes towards the front and continued driving at 50-55 kph.  The plaintiff somehow moved onto the road directly in front of her car which hit and injured him.  The motorist was found to be 30 per cent contributorily negligent in failing to foresee the plaintiff might behave irresponsibly and in failing to take adequate precautions to avoid hitting him.  Derrington J said:

"However the law does not relieve drivers of motor-vehicles from all duty of care to avoid injuring vulnerable persons such as children or intoxicated persons when that person's abnormal condition is clearly visible and the danger reasonably foreseeable at a time when the motorist can avoid it by prudent precautions: Cotton v Commissioner for Road Transport and Tramways (1942) 43 SR(NSW) 66 at 68-69.  This does not apply if the motorist had no reason to foresee the pedestrian's abnormal behaviour: Trompp v Liddle (1941) 41 SR(NSW) 108, but it is not a question whether the movement was unexpected but rather whether its possibility was reasonably foreseeable.

Because of the gravity of the damage that may be inflicted upon a pedestrian by a motor car, its driver is required to take appropriately higher precautions to avoid injury to others, even to those who place themselves in a position of danger through irresponsibility such as drunkenness or skylarking or even serious negligence: cf Teubner v Humble (1963) 108 CLR 491; [1963] ALR 417; Kilminster v Rule, supra at 46.  It would not, however, apply to the case of an ordinary pedestrian who shows no signs of irrational behaviour nor to one whose presence cannot be observed until too late: cf Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; 120 ALR 16."^[4]

11. Whilst the Traffic Regulations require those undertaking a U-turn to give way to all traffic, which includes pedestrians, breach of a traffic regulation does not establish negligence.  The appellant must establish that his injuries were caused or materially contributed to by the respondent's wrongful conduct.  Here it is submitted that the wrongful conduct is the failure to foresee that the drunken appellant could move onto the median strip and act irresponsibly and the failure to take adequate precautions to avoid hitting him should he do so.

12. Despite the fact that the respondent was affected by alcohol, his Honour was entitled to conclude that there was no fault on the part of the respondent that materially contributed to the appellant's injuries: the respondent was driving at about 20 kph properly negotiating a U-turn; the respondent believed the appellant and friends were on the footpath on the opposite side of the road; and the respondent in negotiating the U-turn understandably would have been primarily focused on traffic approaching from the north in Scarborough Road or at its intersection with Peterson Street, whereas the appellant was to the south of the intersection.  When the respondent's vehicle was no more than 10 or 15m from the appellant, the appellant jumped out in front of the vehicle; it is unlikely that either the respondent or a sober,  careful motorist could have stopped in time to avoid the collision and the subsequent injuries to the appellant.   His Honour was not required to infer from the facts that the respondent should have anticipated the presence of the appellant and his friends on the median strip nor that the appellant could jump off the median strip in front of her vehicle as she completed the U-turn when her car was no more than 10 or 15m away from him.  Although that inference was open, the inference drawn by his Honour was at least equally open on the evidence.  In those circumstances, his Honour was entitled to conclude as he did that even a sober and careful driver in the position of the respondent would have been unable to avoid colliding with the appellant and that the appellant had failed to establish negligence on the part of the respondent.

13. The appeal is dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 4488 of 1998

Brisbane

Before  McMurdo P

Pincus JA

Fryberg J

[Bird v McShea & Suncorp]

BETWEEN:

TRISTAN JAMES BIRD

(Plaintiff)

Appellant

AND:

SARAH LOUISE McSHEA and

SUNCORP INSURANCE AND FINANCE

(Defendants)

Respondents

REASONS FOR JUDGMENT - FRYBERG J

Judgment delivered 20 April 1999

1. I agree with the reasons for judgment delivered by the President and Pincus JA and with the orders proposed.  I note that no argument was addressed to the court based on anything said in Chappel v Hart (1998) 72 ALJR 1344.