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
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
WARD JA: I agree with Emmett JA.
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
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).
There is a pedestrian crossing on Ross Street, the crossing…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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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.]