WENDY JUNE SPENCER v ROBERT JAMES HUME [1991] NSWCA 255

WENDY JUNE SPENCER v ROBERT JAMES HUME

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, CLARKE and MEAGHER JJA 16 May 1991, 16 May 1991 [1991] NSWCA 255

APPEAL — NEGLIGENCE APPORTIONMENT OF RESPONSIBILITY DAMAGES — INTEREST — INTEREST ON GRIFFITHS v KERKEMEYER, 139 CLR 161, COMPONENT

Clarke JA This is an appeal from a judgment of Loveday J in which he found forthe respondent and awarded him damages of $80,242. The case from which the appeal arises concerned a motor vehicle accident which occurred on 7 June 1983 on the Great Western Highway, St Marys. The respondent was at the time a relatively elderly and reasonably severely disabled person.

He lived in a house on the northern side of the highway. It was his wish to travel to the southern side of the roadway which required him to traverse two trafficable lanes of traffic. By that I mean the eastbound and westbound lanes of traffic and not the individual lanes, three of which made up the eastbound and three of which made up the westbound lanes.

It appears that when the plaintiff started to walk slowly across the road there were vehicles either pulled up at traffic lights 250 metres to his west, or vehicles just starting off from those traffic lights. He had, on any view, about 250 metres of clear roadway on his right and even though he was walking slowly he had a reasonable expectation of getting across the street or to the median strip before the vehicles arrived or, in any event, an expectation that-the vehicles might slow down if they approached more quickly than was expected.

In the event, the appellant who was driving one of the vehicles which was in the vicinity of the traffic lights at the time the respondent started his walk struck him. Her evidence was to the effect that she was in the third lane of traffic travelling east, that is in the lane nearest to the median strip. She was beside a yellow vehicle which took off quickly from the lights and took up a position about two car lengths in front of her. She had a clear vision although it was dusk. The evidence was also to the effect that lighting in the area was good. However, when the yellow vehicle took up a position about two or more lengths in front of her it is fairly obvious that there was some obstruction to her view to her left. In any event, after she had been proceeding for some distance she noticed the yellow car suddenly veer to the left and then veer back to the right and at about the same time she saw the respondent in front of her walking towards the median strip; "shuffling" was the word she used.