CABALA v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1990] NSWCA 36

CABALA v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY JA and CLARKE JJA 25 May 1990, 7 June 1990 [1990] NSWCA 36

Appeal from Common Law Division — Action for negligence — Plaintiff pedestrian on pedestrian crossing at night — Walked from in front of stopped vehicle across path of oncoming vehicle — Lights showing green for traffic in direction defendant vehicle was going — Possibility of knowledge by driver that plaintiff was crossing on pedestrian crossing against pedestrian lights — Decision of fact as to care required by driver.

Mahoney JA At approximately 9 o'clock in the evening of 10 July 1984 the plaintiff was struck by the defendant's motor vehicle. She was crossing Shaftesbury Road, Burwood, at its intersection with Victoria Street. She suffered substantial injuries. The plaintiff sued the driver and owner of the vehicle. On 30 November 1988 Yeldham J held that the driver had not been negligent and accordingly entered judgment for the defendant. The plaintiff has appealed to this Court against his Honour's judgment.

At the trial, there was a serious contest between the plaintiff and the defendant as to the facts. The plaintiff's evidence was that she had crossed Shaftesbury Road from east to west in a pedestrian crossing and that the pedestrian control lights which were there were green and remained green in her favour until just before she was hit by the vehicle. His Honour did not accept the plaintiff's account of the accident and recorded that, at the trial, "her counsel did not submit that I should accept it".

Before this Court Mr Toomey QC for the plaintiff accepted that the plaintiff's account was not to be relied upon and that, the matter was to be determined by reference to the evidence of the driver of the vehicle Mr Thomas Turner and the independent witness Mr Geoffrey Owen. He conceded that the statement made by Mr Turner at the time, which was recounted by the police officer in his evidence at the trial, and the evidence of Mr Owen are to be accepted as evidence of what occurred. The appeal has been conducted upon the basis that the Court is to determine whether, on that evidence, the driver was negligent and (if he was) the plaintiff was guilty of contributory negligence.