Clarke v Freund

[1999] NSWCA 197

CITATION:	Clarke v Freund [1999] NSWCA 197
FILE NUMBER(S):	CA 40152/98
HEARING DATE(S):	18/05/99
JUDGMENT DATE:	18 May 1999
PARTIES :	Merle Patricia CLARKE Michael John FREUND
JUDGMENT OF:	Handley JA at 20; Sheller JA at 21; Beazley JA at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	7504/96
LOWER COURT JUDICIAL OFFICER:	Sinclair DCJ

COUNSEL:	Appellant: S Norton Respondent: C Charteris
SOLICITORS:	Appellant: John D Hancock Respondent: Windeyer Dibbs
CATCHWORDS:	Motor vehicle accident; negligence ; pedestrian emerging onto road from between stationary cars in outside lane; driver failing to slow; whether negligence; contributory negligence of pedestrian
ACTS CITED:	Suitor's Fund Act 1951 (NSW)
CASES CITED:	Stocks & McDonald Hamilton Co Pty Limited v Baldwin (1996) 24 MVR 416
DECISION:	Appeal Allowed

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40152/98
DC 7504/96

HANDLEY JA
SHELLER JA
BEAZLEY JA

Tuesday, 18 May 1999

Merle Patricia CLARKE v Michael John FREUND

JUDGMENT

1 BEAZLEY JA: The appellant was injured in a motor vehicle accident on 1 August 1990 when she was struck by a motor vehicle owned and driven by the respondent. The accident occurred along Maitland Road at Mayfield.
2 The circumstances of the accident and the contemporaneous evidence of the appellant, the respondent and the witnesses as given to the police who attended the scene of the accident are set out in his Honour’s judgment and it is not necessary for me to repeat it.
3 The trial judge concluded his judgment by setting out seven findings of fact. It has not been established that findings one to six were not open to his Honour. I would like to say in due course, however, something in respect of finding four where his Honour stated:

“When the plaintiff emerged from in front of the stationary vehicles the defendant’s vehicle was travelling at a speed slightly in excess of 40 kilometres per hour.”

4 I will return to that in a moment. His Honour concluded in finding against the appellant that he was not satisfied that the respondent was not keeping a proper lookout and he was not satisfied that he was driving at a negligent speed in the prevailing circumstances.
5 However, it seems to me that there was a question which was central to this case which his Honour did not consider. The accident should, in my opinion, be considered as having occurred in the following circumstances: the respondent was, as he said, travelling along Maitland Street at Mayfield approaching the intersection of what I will call Havelock Street, although to be accurate that cross street was called Havelock Street on the respondent’s right and Corona Street on the respondent’s left.
6 As he was approaching that intersection, which was controlled by traffic lights, the traffic lights were red against his direction of travel. He was in the lane closest to the centre dividing line. Maitland Street itself comprised two lanes in his direction of travel. The kerbside lane was a wide lane…