Turkmani v Visvalingam  NSWCA 211
27 July 2009
Beazley, Hodgson & McColl JJA
- A pedestrian should shoulder the majority of the blame where he or she runs across the road, against the lights.
The NSW Court of Appeal handed down its decision in Turkmani v Visvalingam on 27 July 2009.
The primary issue on appeal was whether the trial judge erred in his assessment of contributory negligence, although primary negligence was also in issue.
On 19 December 2002, at approximately 5.25pm, a collision occurred between the defendant's car and the deceased pedestrian at the intersection of Fox Valley Road and Comenara Parkway at Wahroonga.
The defendant drove through the intersection in a westerly direction along Comenarra Parkway. The lights were green in his favour. There were vehicles in the lane to the defendant's right, waiting to turn right into Fox Valley Road. The first vehicle in line was a large white van.
The deceased jogged in front of the waiting vehicles, within the pedestrian crossing, and was run down by the defendant. The point of impact was the right side of the defendant's vehicle, just behind the front wheel.
The trial judge found that the defendant's vehicle was travelling at between 40 and 50 kilometres per hour and that the deceased was jogging at approximately 3.4 metres per second. The deceased was crossing the road in disobedience of a "don't walk" traffic signal.
A witness travelling behind the defendant's vehicle saw the deceased running or briskly jogging along the footpath near the corner and on the pedestrian crossing. The witness flashed his lights a number of times and saw the defendant decrease his speed before the impact. The trial judge accepted that the witness was 70 metres from the intersection when he saw the deceased.
At first instance, the trial judge found a breach of duty of care – based upon a failure to keep a proper lookout – subject to 60% contributory negligence.
The defendant appealed against both the finding of negligence and the degree of contributory negligence.
Court of Appeal
The leading Judgment in the Court of Appeal was delivered by Hodgson JA, with whom McColl JJA agreed. Justice Beazley agreed on the issue of negligence, but dissented on the issue of contributory negligence.
On the issue of primary negligence, the Court of Appeal found that it was open to the trial judge to find that the accident was caused by the defendant's failure to keep a proper lookout, particularly given that the he did not see the deceased at any time prior to the impact in circumstances where the witness travelling behind him saw the deceased from a point 70 metres prior to the intersection.
On the more interesting issue of contributory negligence, the Court of Appeal held that the finding of 60% contributory negligence was clearly inadequate and decided to intervene.
At paragraphs 55 to 56, Hodgson JA explained as follows:
"54 However, in my opinion the apportionment of 60/40 in this case, which does not depart very far from equality of responsibility for the accident, is so plainly wrong as to require appellate intervention.
"55 The fault of the appellant which was proved in this case was no more than a quite small falling short of the high standard of vigilance required of a driver in traffic approaching an intersection. On the other hand, the deceased deliberately broke the law by going on to the road against the "don't walk" sign, thereby intentionally giving rise to a situation where he and other road users were put at serious risk. The risk thus deliberately created by the deceased was not merely to himself, because a pedestrian on the road in traffic in an unexpected position can cause cars to swerve and crash. I take into account that the appellant was driving a car capable of causing very severe injury; but the deliberate action of the deceased was also capable of causing very serious injury by cars, not only to himself but also to others, for the reasons I have given. Further, the action of the deceased in emerging at a jogging pace from behind the white van was a further action causing great risk to himself and others.
"56 In those circumstances, I would assess contributory negligence at 80 per cent."
As such, the Appeal was allowed in part, in that the finding of negligence was confirmed and contributory negligence was increased from 60% to 80%.
The Court of Appeal's decision in Turkmani endorses a very high level of contributory negligence in pedestrian cases, particularly where the pedestrian is crossing against the lights and at greater than walking pace.
An interesting aspect of the decision is the observation made by Hodgson JA that whilst the driver may be in charge of a lethal weapon, the pedestrian is also capable of causing serious injury given that cars may swerve – and possibly lose control – in order to avoid hitting the pedestrian.
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