Ma v Keane

[2003] NSWCA 50

CITATION:	MA v KEANE [2003] NSWCA 50
HEARING DATE(S):	7 March 2003
JUDGMENT DATE:	7 March 2003
JUDGMENT OF:	Sheller JA at 1; Santow JA at 30; Gzell J at 36
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	Negligence - Pedestrians - Running down - Carelessness of pedestrian - Where pedestrian stopped, looked at car and continued to cross
LEGISLATION CITED:	N/A
CASES CITED:	Albert v The Nominal Defendant (1999) 29 MVR 107 Cotton v Commission for Road Transport and Tramways (1942) 43 SR (NSW) 66 Derrick v Cheung (2001) 181 ALR 301 Stocks v Baldwin (1966) 24 MVR 416 Schieb v Abbott (1998) 27 MVR 285
PARTIES :	Xiu Lan Ma - Appellant Tracey Amanda Keane - Respondent
FILE NUMBER(S):	CA 40174/02
COUNSEL:	A D M Hewitt SC/C Stewart - Appellant J D Hislop SC/K J Pierce - Respondent
SOLICITORS:	Keddies - Appellant Thomas Laycock - Respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	8390/00
LOWER COURT JUDICIAL OFFICER :	Garling DCJ

CA 40174/02
DC 8390/00

SHELLER JA
SANTOW JA
GZELL AJA

Friday, 7 March 2003

MA v KEANE

Judgment

1 SHELLER JA: The plaintiff Xiu Lan Ma, a pedestrian, was injured when knocked down by a car driven by the defendant, Tracey Amanda Keane, in Harris Street, St Marys on 16 September 1999. The plaintiff was crossing Harris Street from north to south and had passed the centre line of the street when hit by the defendant’s vehicle which was travelling in a westerly direction having turned left out of Glossop Street.

2 The proceedings were heard by his Honour Judge Garling who, on 22 February 2002, gave judgment on liability, finding that the defendant had acted reasonably at all times and that there was no negligence. His Honour entered a verdict for the defendant. The plaintiff now appeals from that decision.

3 In his reasons for judgment, Judge Garling summarised the evidence of the plaintiff, the defendant and two witnesses, Mr Southward and Mr Coyle, who were the defendant’s passengers at the time.

4 The trial Judge concluded that there was no significant difference between the plaintiff’s version of what occurred and the defendant’s version. He stated his findings of what happened as follows:

“The plaintiff on 16 September 1999 at about 8.15 p.m. walked across Harris Street, St Marys. I am unsure of what speed and it does not matter. I do not believe it matters whether she walked slightly diagonally or straight. I accept she looked before she stepped off, I accept she did not see any vehicle, I accept that she walked across and she stopped just short of the centre line. I accept she turned to her left. She looked to her left, I accept she looked straight at the defendant’s vehicle. I find that having stopped and having looked and when the vehicle was approximately ten metres from her she walked at least on to the second side of the road that she walked somewhere in the vicinity of one metre. She…