Knight v Maclean [2002] NSWCA 314 revised - 14/10/2002
FILE NUMBER(S):
CA 40976/01
HEARING DATE(S):
11 September 2002
JUDGMENT DATE:
23 September 2002
PARTIES :
Thomas Job Knight (Appellant) Ruth Catherine Maclean (Respondent)
JUDGMENT OF:
Meagher JA at 1; Heydon JA at 2; Young CJ in Eq at 73
LOWER COURT JURISDICTION :
District Court
LOWER COURT FILE NUMBER(S) :
7841/00
LOWER COURT JUDICIAL OFFICER :
Dent DCJ
COUNSEL:
Mr C R R Hoeben SC (Appellant) Mr BW Ingram/Mr T Bland (Respondent)
SOLICITORS:
Lee & Lyons (Appellant) Heenan & Company (Respondent)
CATCHWORDS:
Tort - negligence - duty of care - existence - scope - collision between motor vehicle and pedestrian - pedestrian struck by vehicle while crossing road - proper precautions of driver - Tort - negligence - liability - contributory negligence - apportionment of liability - D
Tort – negligence – duty of care – existence – scope – collision between motor vehicle and pedestrian – pedestrian struck by vehicle while crossing road – proper precautions of driver
The plaintiff sustained physical injuries when she was struck by the defendant’s motor car as the defendant drove along a road which the plaintiff attempted to cross on foot. The plaintiff sued in tort alleging that the defendant drove negligently, failing to keep a proper lookout. The primary judge found in favour of the plaintiff but reduced the sum of damages awarded on the basis of the plaintiff’s contributory negligence in attempting to cross the road while intoxicated and herself taking adequate precautions for her own safety. Contributory fault was assessed at 40%.
The defendant appealed as to liability and alternatively as to apportionment of fault.
Held (Heydon JA, Meagher JA and Young CJ in Eq agreeing), allowing the appeal:
The defendant did not owe the plaintiff the alleged duty of care. Although the movement of pedestrians at some speed across the road was reasonably foreseeable, the appearance of the plaintiff at a fast walk was not a particular risk or danger which was perceivable, observable or apparent: [62]-[64].
[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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AGLC
Knight v Maclean [2002] NSWCA 314
Case
[2002] NSWCA 314
Decision Date
CaseChat Overview and Summary
Knight was the plaintiff and Maclean was the defendant in proceedings before the New South Wales Court of Appeal. The dispute arose from a motor vehicle accident where the plaintiff, a pedestrian, was struck by the defendant's vehicle while crossing a road. The plaintiff alleged that the defendant was negligent in the operation of his vehicle, causing the collision and his subsequent injuries.
The primary legal issues before the Court of Appeal were whether the defendant owed a duty of care to the plaintiff, the scope of that duty, and whether the defendant had breached that duty by failing to take proper precautions. Additionally, the court was required to consider the question of contributory negligence on the part of the plaintiff and, if found, to determine an apportionment of liability between the parties.
The court's reasoning focused on the established principles of negligence in tort law. It examined the foreseeability of harm to pedestrians in the circumstances of the road crossing and the reasonableness of the defendant's actions in operating his vehicle. The court considered the evidence presented regarding the speed of the vehicle, the visibility of the pedestrian, and the actions of both parties immediately prior to and during the collision. The principles of contributory negligence were applied to assess whether the plaintiff's own conduct had contributed to the accident, and if so, to what extent.
The court ultimately made orders regarding the apportionment of liability between the plaintiff and the defendant, as detailed in paragraph 72 of the judgment.