Stock v Johnston - [2012] NSWDC 212

District Court

New South Wales

Medium Neutral Citation: Stock v Johnston [2012] NSWDC 212
Hearing dates: 8-10,14 August 2012
Decision date: 15 August 2012
Before: Neilson DCJ
Decision:
I give verdict and judgment for the Plaintiff against the Defendant for $80,878.68.
I order the Defendant to pay the Plaintiff's costs.
I grant a stay of proceedings of 28 days.
Exhibits to be retained.

Catchwords: PERSONAL INJURY - Tort of negligence - Plaintiff attempting to cross street when she collided with a motor vehicle being driven by the defendant - Plaintiff did not see defendant's vehicle heading towards her - Plaintiff had stopped at pedestrian ramp on kerb and looked both ways before stepping onto the road - Defendant saw plaintiff and slowed down and kept plaintiff under observation - Plaintiff had likely blood alcohol concentration at time of collision of 0.302 g/100 ml - CONTRIBUTORY NEGLIGENCE - Plaintiff's damages reduced by 75%
Legislation Cited: Civil Liability Act 2002 ss 49, 50
Motor Accidents Compensation Act 1999
Cases Cited: Evans v Lindsay [2006] HCA 354
Manley v Alexander [2005] HCA 79
Vale v Eggins [2006] NSWCA 348
Category: Principal judgment
Parties: Julianne Rochelle Stock (Plaintiff)
Kylie Ann Johnston (Defendant)
Representation: Mr G Radburn (Plaintiff)
Mr D Priestly (Defendant)
Bourke Love Lawyers (Plaintiff)
TL Lawyers (Defendant)

File Number(s): 2011/337995

Judgment

HIS HONOUR: The plaintiff, Julianne Rochelle Stock, brings an action for damages for personal injury sustained by her on Sunday 26 October 2008. The plaintiff's cause of action is in the tort of negligence. Aspects of the plaintiff's claim are governed by the Motor Accidents Compensation Act 1999 and also by the Civil Liability Act 2002.

The plaintiff was attempting to cross Hill Street in East Ballina from west to east when she collided with a motor vehicle being driven by the defendant, Ms Kylie Ann Johnston.

The main street of Ballina is known as River Street. At its eastern end, that is after it passes the Ballina Court House and police station, past the swimming pool and waterslide, it continues on under the name of Kingsford Smith Drive. It then comes to a roundabout where it intersects with Bentinck Street. The third of the three roads entering the roundabout is the road which crosses North Creek, an inlet of the Richmond River. The road is carried by Missingham Bridge. As the road continues beyond the bridge, it becomes known as Hill Street, which eventually runs into Pine Street and Pine Street carries on north-eastwards and becomes the main coastal road linking Ballina with Lennox Head and then Suffolk Park and then Byron Bay. The major direction of both Hill Street and its continuation, Pine Avenue, can be seen as being from south-west to north-east. It can be conveniently described as being from south to north.

The road geometry and road layout are set out extensively in the report of Mr William Keramidas, an expert in traffic and transport engineering, which report is dated 10 November 2011. That description is this:

"Hill…

Grounds of appeal

[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.

Continue reading Stock v Johnston

Details

AGLC: Stock v Johnston [2012] NSWDC 212
Case: [2012] NSWDC 212
Decision Date: 15 August 2012

CaseChat Overview and Summary

The plaintiff in this case was crossing a street when she was struck by a vehicle driven by the defendant. The plaintiff had stopped at a pedestrian ramp on the kerb, looked both ways before stepping onto the road, but did not see the defendant's vehicle heading towards her. The defendant, on the other hand, saw the plaintiff and slowed down, keeping her under observation. The plaintiff's blood alcohol concentration at the time of the collision was likely 0.302 g/100 ml. The plaintiff claimed that the defendant was negligent in failing to avoid the collision, and the defendant argued that the plaintiff was also negligent in crossing the street while intoxicated, and that this contributed to the accident. The case was heard in the Supreme Court of Victoria.

The legal issues before the court were whether the defendant was negligent in failing to avoid the collision and whether the plaintiff was contributorily negligent. The court had to consider the standard of care owed by the defendant to the plaintiff, whether the defendant breached that standard, and whether the plaintiff's intoxication contributed to the accident. The court also had to determine the extent to which the plaintiff's damages should be reduced if she was found to be contributorily negligent.

The court found that the defendant was not negligent in failing to avoid the collision, as she had seen the plaintiff and slowed down, keeping her under observation. However, the court found that the plaintiff was contributorily negligent in crossing the street while intoxicated, and that this contributed to the accident. The court reduced the plaintiff's damages by 75% to reflect this contributory negligence. The court found that the defendant was liable for the remaining 25% of the plaintiff's damages, which amounted to $80,878.68.

The court ordered the defendant to pay the plaintiff's costs and granted a stay of proceedings of 28 days. The exhibits were to be retained.

Orders

Orders of the court

I give verdict and judgment for the Plaintiff against the Defendant for $80,878.68.

I order the Defendant to pay the Plaintiff's costs.

I grant a stay of proceedings of 28 days.

Exhibits to be retained.

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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Medium Neutral Citation:	Stock v Johnston [2012] NSWDC 212
Hearing dates:	8-10,14 August 2012
Decision date:	15 August 2012
Before:	Neilson DCJ
Decision:	I give verdict and judgment for the Plaintiff against the Defendant for $80,878.68. I order the Defendant to pay the Plaintiff's costs. I grant a stay of proceedings of 28 days. Exhibits to be retained.
Catchwords:	PERSONAL INJURY - Tort of negligence - Plaintiff attempting to cross street when she collided with a motor vehicle being driven by the defendant - Plaintiff did not see defendant's vehicle heading towards her - Plaintiff had stopped at pedestrian ramp on kerb and looked both ways before stepping onto the road - Defendant saw plaintiff and slowed down and kept plaintiff under observation - Plaintiff had likely blood alcohol concentration at time of collision of 0.302 g/100 ml - CONTRIBUTORY NEGLIGENCE - Plaintiff's damages reduced by 75%
Legislation Cited:	Civil Liability Act 2002 ss 49, 50 Motor Accidents Compensation Act 1999
Cases Cited:	Evans v Lindsay [2006] HCA 354 Manley v Alexander [2005] HCA 79 Vale v Eggins [2006] NSWCA 348
Category:	Principal judgment
Parties:	Julianne Rochelle Stock (Plaintiff) Kylie Ann Johnston (Defendant)
Representation:	Mr G Radburn (Plaintiff) Mr D Priestly (Defendant) Bourke Love Lawyers (Plaintiff) TL Lawyers (Defendant)
File Number(s):	2011/337995