BOYD v ELLIOTT [1992] NSWCA 26

BOYD v ELLIOTT

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY JA and Hope AJA 10 July 1992, 10 July 1992

[1992] NSWCA 26

NEGLIGENCE — motor vehicle — reasonable care — entitlement to anticipate reasonable care by pedestrians for their own safety — Winters v Davidson (1989) 9 MVR 239 applied. MOTOR VEHICLES — negligence — duty to sound horn — duty to stop flow of traffic — requirements of reasonableness — held: no negligence. NEGLIGENCE — motor vehicle — want of reasonable care — pedestrian on side of road struck by passing motor vehicle — conflicting version of facts — pedestrian claims vehicle driven off bitumen onto gravel verge — driver claims pedestrian lurches into path of vehicle independent witness confirms driver's version — trial judge accepts driver's version — dismisses claim for damages — on appeal to the Court of Appeal — held: (by the Court): (1) The standard of care required was that of reasonableness in the prevention of foreseeable injuries. Daly v Liverpool Corporation [1939] 2 All ER 142 (KBD); Cocks and Anor v Sheppard (1979) 53 ALJR 591 (HC); Bishop v Dunn (1984) 1 MVR 381 (SCNSW) considered; (2) Irrational behaviour of pedestrians, in apparent disregard for their own safety, may not be reasonably anticipated by a reasonably careful motorist. Winters v Davidson (1989) 9 MVR 239 (NSWCA) applied; (3) Having regard to the acceptance of the driver's version, the Court of Appeal was not authorised to reach a different conclusion. Abalos v Australian Postal Commission (1990) 171 CLR 167 applied; (4) Appeal dismissed with costs.

MOTOR VEHICLES — negligence — duty of care — duty owed by motor vehicle driver to pedestrian seen lurching on gravel verge of road held: No duty to stop vehicle and lane of traffic in circumstances. No duty to sound horn.