Dungan v Chan

Case [2013] NSWCA 182


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Dungan v Chan [2013] NSWCA 182
Hearing dates:14 June 2013
Decision date: 02 July 2013
Before: Ward JA at [1];
Emmett JA at [2];
Gleeson JA at [25]
Decision:

(1) Appeal dismissed.

(2) Appellant pay the respondent's costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: TORTS - negligence - road accident - whether driver breached duty of care to pedestrian - where collision occurred when traffic light green for vehicles - where pedestrian broke rules by commencing to cross when pedestrian light flashing red - whether driver failed to keep proper lookout
Legislation Cited: District Court Act 1973, s 142
Cases Cited: Wheare v Clark [1937] HCA 7; (1937) 56 CLR 715
Stocks & McDonald Hamilton Co Pty Ltd v Baldwin (1996) 24 MVR 416
Tsuji v Metromix Pty Ltd [1998] NSWSC 691; (1998) 28 MVR 401
Albert v Nominal Defendant [1999] NSWCA 73; (1999) 29 MVR 107
Stojanoska v Fairfax [1998] NSWCA 225
Mobbs v Kain [2009] NSWCA 301; (2009) 54 MVR 179
Category:Principal judgment
Parties: Wynne Lorraine Dungan (Appellant)
Dominic Chan (Respondent)
Representation: Counsel:
C T Barry QC; G Walsh (Appellant)
R O'Keefe (Respondent)
Solicitors:
CMC Lawyers (Appellant)
Vardanega Roberts Solicitors (Respondent)
File Number(s):CA 2012/290053
 Decision under appeal 
Date of Decision:
2012-09-06 00:00:00
Before:
Balla DCJ
File Number(s):
2010/240158

Judgment

  1. WARD JA: I agree with Emmett JA.

  1. EMMETT JA: The appellant, Ms Wynne Dungan, collided with a taxi driven by the respondent, Mr Dominic Chan. As a consequence, Ms Dungan was injured. She claimed damages from Mr Chan in a proceeding brought in the District Court of New South Wales. The claim was dismissed by the District Court. Ms Dungan has now appealed to the Court of Appeal.

The Collision

  1. The collision occurred on 18 September 2009 when Ms Dungan was crossing Parramatta Road, Camperdown, at a pedestrian crossing at the intersection of Parramatta Road with Ross Street and Western Avenue, which is within the University of Sydney. At that location, Parramatta Road is seven lanes wide. There are three lanes for traffic travelling east, towards the City, and four lanes for traffic travelling west, away from the City. The four lanes for westbound traffic, from south to north (or from left to right as one faces west), consist of a lane for buses and taxis next to the curb (lane 1), the next two lanes north of the kerb (respectively, lane 2 and lane 3) and a right-hand turn lane (lane 4).

  1. There is a pedestrian crossing on Ross Street, the crossing…

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Details
AGLC
Dungan v Chan [2013] NSWCA 182
Case
[2013] NSWCA 182
Decision Date

CaseChat Overview and Summary

The appeal concerned a road accident in which the appellant, a pedestrian, was struck by a vehicle driven by the respondent. The collision occurred at an intersection where the traffic lights were green for vehicles. The pedestrian light, however, was flashing red when the appellant commenced to cross the road. The appellant alleged the respondent was negligent in failing to keep a proper lookout. The matter was heard by Ward, Emmett and Gleeson JJA in the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether the respondent driver had breached their duty of care to the appellant pedestrian. This involved determining whether the respondent had failed to keep a proper lookout, given the circumstances of the collision, including the state of the traffic lights for both vehicles and pedestrians.

The Court of Appeal found that the respondent driver had not breached their duty of care. The reasoning applied was that the respondent was entitled to proceed through the intersection when the traffic light was green for vehicles. While a driver owes a duty of care to pedestrians, that duty does not extend to anticipating that a pedestrian will disregard a flashing red pedestrian signal and enter the roadway. The appellant's own actions in commencing to cross against a flashing red light were a significant factor in the collision.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs.

Orders

Orders of the court

(1) Appeal dismissed.

(2) Appellant pay the respondent's costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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