Ma v Keane

Case [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…

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Ma v Keane [2003] NSWCA 50
Case
[2003] NSWCA 50
Decision Date

CaseChat Overview and Summary

The appeal concerned a negligence claim brought by the plaintiff, Ma, against the defendant, Keane, following a collision between the plaintiff and the defendant's vehicle. The incident occurred as the plaintiff was crossing a road. The primary dispute revolved around whether the defendant had breached their duty of care to the plaintiff, and conversely, whether the plaintiff had contributed to their own injuries through their own carelessness. The matter was heard in the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the trial judge had erred in finding that the defendant was not negligent, and whether the trial judge had erred in finding that the plaintiff had been contributorily negligent. Specifically, the court had to consider the standard of care owed by a driver to a pedestrian and the standard of care owed by a pedestrian crossing a road, particularly in circumstances where the pedestrian had stopped, observed the approaching vehicle, and then proceeded to cross.

The Court of Appeal upheld the trial judge's findings. The court reasoned that while drivers owe a duty of care to pedestrians, the plaintiff's own actions were a significant factor. The plaintiff had stopped and looked at the approaching vehicle before continuing to cross, which the court considered to be a clear indication of awareness of the vehicle's presence and proximity. This awareness, coupled with the plaintiff's decision to proceed, led the court to conclude that the plaintiff had failed to exercise reasonable care for their own safety, thereby contributing to the collision. The court applied the principles of contributory negligence, finding that the plaintiff's carelessness was a substantial cause of their injuries.

The appeal was dismissed, and the plaintiff was ordered to pay the defendant's costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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