Lyons v Fletcher

[2014] NSWCA 67

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Lyons v Fletcher [2014] NSWCA 67

Hearing dates:

14/02/2014

Decision date:

18 March 2014

Before:

Macfarlan JA at [1]
Emmett JA at [9]
Gleeson JA at [61]

Decision:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal.

[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 - failure to look-out - pedestrian accidents - whether defendant should have had headlights on high beam - whether breach of duty - whether causation established

Legislation Cited:

Civil Liability Act 2002 (NSW), s 5D

Cases Cited:

Derrick v Cheung [2001] HCA 48; 181 ALR 301
South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; 55 NSWLR 113
Marien v Gardiner [2013] NSWCA 396

Category:

Principal judgment

Parties:

Suzanne Therese Lyons (Appellant)
Clay Fletcher (Respondent)

Representation:

Counsel:
L King SC with C Hickey (Appellant)
K Rewell SC with J Turnbull (Respondent)
Solicitors:
Everingham Solomons (Appellant)
McInnes Wilson Lawyers NSW (Respondent)

File Number(s):

CA 2012/377239

Publication restriction:

No

 Decision under appeal 

Date of Decision:

2012-11-09 00:00:00

Before:

Mahony SC DCJ

File Number(s):

10/2633476

Judgment

1. MACFARLAN JA: I agree with Emmett JA that the appeal should be dismissed with costs and, subject to the following, agree with his Honour's reasons.

1. Although the breach was not causative of Ms Lyons' injuries, for the following reasons Mr Fletcher was in my view in breach of duty in not having his vehicle's headlights on high beam immediately prior to the accident.

1. The distance between the two well-lit roundabouts was agreed to be about 425 metres. Mr Fletcher described that stretch of the road as being in "complete darkness" as he drove along it (Transcript p 87). He said in cross-examination that he had previously seen people walking at night on the strip of concrete in the middle of the road (Transcript pp 88-9), although in re-examination he qualified the impression created by that evidence by saying that he had not seen such people for "years". Nevertheless, there was thus a possibility of which he was aware that there might be people on or near the road, even in the middle of the night. Indeed, the reason he gave for not stopping after the accident was that he did not know that he had hit someone but thought that children (presumably at or near the roadside) had thrown a brick or rock at his vehicle. Other possible hazards would have included material on the roadway such as might have fallen off a truck,…