GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v AYTEN ERGUL [1993] NSWCA 108

GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v AYTEN ERGUL

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY AP, CLARKE and MEAGHER JJA 2 December 1993, 17 December 1993 [1993] NSWCA 108

APPEAL FROM DISTRICT COURT — Motor vehicle accident — Plaintiff crossing street at pedestrian crossing against lights — struck by motor cycle one metre from far kerb — Held: Cyclist guilty of negligence.

PEDESTRIAN CROSSINGS — Duty of drivers approaching pedestrian on pedestrian crossing — Whether duty affected by fact that pedestrian is crossing against lights.

CONTRIBUTORY NEGLIGENCE — Held (Mahoney AP and Meagher JA, Clarke JA dissenting): Pedestrian 25 per cent responsible for damages.

Mahoney AP At about 5.30 pm on 7 June 1985 the plaintiff Ayten Ergul was crossing Beamish Street, Campsie. He was struck by a vehicle and suffered substantial injuries. He claimed damages from what was then the relevant authority, the Government Insurance Office of New South Wales ("GIO").

On 21 December 1990 Twigg DCJ, as he now is, held that the plaintiff was injured by the negligence of the driver of a motor vehicle, held that responsibility for his injuries should be apportioned as to one-third to the plaintiff, assessed his damages at $35,295.80, and awarded the plaintiff judgment in the amount of $23,530. GIO has appealed to this Court against his Honour's judgment.

On appeal it was contended for GIO:

(1) That the driver of the motor vehicle was not negligent;

(2) That (if he was) the responsibility for the plaintiffs injuries shouldbe apportioned equally between the plaintiff and the driver; and (3) That his Honour's assessment of the damages was appealably excessive.

In order to deal with the submissions made by the parties it is necessary to refer to the facts as they were found by the learned judge. Counsel for the respondent has accepted that the statement of them by counsel for GIO may be accepted as relevantly correct.