Suzanne Lyons v Clay Fletcher

[2012] NSWDC 207

District Court

New South Wales

Medium Neutral Citation:	Suzanne Lyons v Clay Fletcher [2012] NSWDC 207
Hearing dates:	3-5 September 2012 (Tamworth)
Decision date:	09 November 2012
Before:	Mahony SC DCJ
Decision:	Verdict for the Defendant
Catchwords:	Motor vehicle accident; pedestrian; contributory negligence
Legislation Cited:	Motor Accident Compensation Act 1999 Civil Liability Act 2002
Cases Cited:	Manley v Alexander (2005) 80 ALJR 413 South Tweed Heads Rugby League Football Club Ltd v Cole & Anor (2002) 55 NSWLR 113 Nominal Defendant v Puglisi, High Court of Australia, unreported, 3 August 1984 Holloway v McFeeters (1956) 94 CLR 470 Little v Mackellar [2012] NSWCA 331 Stocks v Baldwin (1996) 24 MVR 416 National Insurance Co of New Zealand v Espagne (1961) 105 CLR 569 Adeels Palace Pty Limited v Moubarak (2009) 239 CLR 420
Category:	Principal judgment
Parties:	Suzanne Lyons - Plaintiff Clay Fletcher - Defendant
Representation:	C Hickey - Plaintiff J Turnbull - Defendant T Broomfield - Everingham Solomons - Plaintiff D P Newell - Dibbs Barker - Defendant
File Number(s):	10/263346

Judgment

The Plaintiff's Claim

1. The plaintiff claims damages for personal injuries suffered by her when she was a pedestrian crossing from south to north on Gunnedah Road, Tamworth at 12.40am on 21 September 2007. The plaintiff was struck by a vehicle driven by the defendant.

1. The plaintiff, who was born on 26 April 1974, was with two other persons, Stacey Dixon and Jason Dawson. She had entered onto Gunnedah Road at a point where that road was elevated so as to pass over a railway line. There is a walkway on the southern side of Gunnedah Road, and a barrier between the walkway and Gunnedah Road. Gunnedah Road is comprised of two lanes travelling in a generally westerly direction, a concrete median strip and two lanes travelling in a generally easterly direction.

1. The plaintiff had crossed both westbound lanes, the median strip and the lane closest to the median strip for traffic travelling east. The defendant was travelling east. As he approached the area where his vehicle struck the plaintiff, he was travelling up an incline and approaching a roundabout at the intersection of Gunnedah Road and Duri Street that was well lit. He looked down at his dashboard to determine whether his driving lights were off, and did not see the plaintiff prior to his vehicle colliding with her. Following the impact he did not stop, but continued his journey into Tamworth and then reported the matter to the Police.

1. The plaintiff sustained very serious injuries.

Evidence as to the Circumstances of the Accident

1. The plaintiff had no recollection of the circumstances of the accident. Her last recollection before being injured was at her son's football match the previous weekend. Her next recollection was being in hospital.

1. Stacey Dixon gave evidence that she had spent part of that day and evening with the plaintiff and Jason Dawson. During the evening they had been at Mr Dawson's mother's house and had decided to walk to the plaintiff's home,…