LJUBOMIR ILSEVIC v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1992] NSWCA 111

LJUBOMIR ILSEVIC vy GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, SHELLER and CRIPPS JJA.

13 November 1992, 13 November 1992

[1992] NSWCA 111

NEGLIGENCE, REASONABLE CARE.

Meagher JA In this matter the plaintiff, Mr Ilsevic, appeals to this Court froma judgment in favour of the defendant given by his Honour, Judge Walsh, in the District Court.

The incident out of which the plaintiffs case grows was a collision at Terminus Street, Liverpool, between the then plaintiff, who was a pedestrian, and Mr Tierney, the driver for whose conduct the defendant was responsible. The accident took place about 6 pm on 12 November 1986. It was virtually common ground that the plaintiff was endeavouring to cross Terminus Street from north to south in order to reach the junction of Terminus Street and Speed Street. He in fact reached the median strip, then stepped off and was struck by the defendant's vehicle which was travelling west along Terminus Street in the lane closest to the median strip.

As I have said, so much here is common ground but as to the details of the accident there was considerable dispute. His Honour accepted that the defendant's speed was not excessive. The traffic was very heavy and the conditions were wet. His Honour must be taken to have accepted completely the defendant's evidence, unless he indicated to the contrary, and that conclusion was that when the defendant first saw the plaintiff leaving Terminus Street from the northern side, he was about sixty metres away. At this stage the speed of his vehicle was approximately 45 km per hour. When he was twenty five metres away, the plaintiff had reached the median strip of the road. At this stage the defendant reduced his speed to approximately 20 or 30 km per hour. As far as the defendant's mind is concerned, that is set out in a series of questions and answers, as I shall now read. They come from the defendant's evidence-in-chief: