Cabala v Government Insurance Office of New South Wales

The applicant, the Government Insurance Office of New South Wales, sought special leave to appeal from a decision of the New South Wales Court of Appeal. The dispute concerned the negligence of a driver in relation to a pedestrian. The High Court of Australia heard the application for special leave.

The primary legal issue before the High Court was whether the Court of Appeal had applied an "absurdly rigorous" test for negligence concerning pedestrians. Specifically, the applicant argued that the Court of Appeal's finding that the driver was not required to take any action, such as warning, slowing, or swerving, until a collision was inevitable, represented a departure from established principles of negligence, such as those in *Wyong Shire Council v Shirt*. The applicant contended that the driver should have seen the pedestrian earlier and taken evasive action.

The applicant's counsel argued that the pedestrian was visible to the driver throughout the incident, despite the Court of Appeal's apparent finding to the contrary. The applicant's case was that the driver should have anticipated the pedestrian continuing into his path, given her manner of crossing the road and her apparent lack of attention to traffic. The applicant sought to demonstrate that the Court of Appeal's reasoning, particularly as expressed by Mahoney J, unduly restricted the driver's duty of care.