Johnston v Stock

[2014] NSWCA 147

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Johnston v Stock [2014] NSWCA 147

Hearing dates:

24 April 2014

Decision date:

14 May 2014

Before:

Meagher JA at [1]; Barrett JA at [10]; Ward JA at [41]

Decision:

1. Appeal allowed.

2. Set aside the judgment and orders of the District Court dated 15 August 2012 and in lieu thereof order as follows:

(a) Judgment for the defendant.

(b) Order that the plaintiff pay the defendant's costs of the proceedings.

3. Order that the respondent pay the appellant's costs of the proceedings in this Court.

4. Order that the respondent have a certificate under the Suitors Fund Act 1953 (NSW) if otherwise qualified.

[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 cases - liability of drivers of vehicles - duty of care and standard of care owed to pedestrians - pedestrian waiting to cross the road and apparently watching the approaching vehicle - pedestrian walks into the side of the vehicle - pedestrian significantly intoxicated - significance of that factor

Legislation Cited:

Civil Liability Act 2002 (NSW)

Cases Cited:

Derrick v Cheung [2001] HCA 48; 181 ALR 301
Draca v Silva [2012] NSWCA 312
Manley v Alexander [2005] HCA 79; 80 ALJR 413
Marien v Gardiner; Marien v H J Heinz Company Australia Ltd [2013] NSWCA 396
Mobbs v Kain [2009] NSWCA 301
Stewart v Carnell (1984) 2 MVR 147
Vale v Eggins [2006] NSWCA 348; 46 MVR 514

Category:

Principal judgment

Parties:

Kylie Ann Johnston (Appellant)
Julianne Rachelle Stock (Respondent)

Representation:

Counsel:
R K Rewell SC/J B Turnbull (Appellant)
I D M Roberts SC/G Radburn (Respondent)
Solicitors:
T L Lawyers (Appellant)
Bourke Love Lawyers (Respondent)

File Number(s):

2012/283122

 Decision under appeal 

Date of Decision:

2012-08-15 00:00:00

Before:

Neilson DCJ

File Number(s):

2011/337995

Judgment

1. MEAGHER JA: I agree for the reasons given by Barrett JA and which follow that this appeal should be allowed.

1. The respondent, a pedestrian, was injured in the early hours of the morning on 26 October 2008 when she collided with the appellant's motor vehicle. The appellant was travelling in a northerly direction along Hill Street, East Ballina. At some distance before the point of that collision, the appellant had seen the respondent coming down a footway which led to a kerb side ramp providing access to the roadway on its western side. When the appellant first saw the respondent "walking a bit stumbling a little bit but walking quite fast" down the footway, she slowed the speed of her vehicle to 40km per hour. A short time later the appellant…