CALDWELL v DEKA [1993] NSWCA 47

CALDWELL v DEKA

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE and MEAGHER JJA 16 April 1993, 16 June 1993

[1993] NSWCA 47

NEGLIGENCE — motor vehicles — whether breach of duty of care — extent of duty owed to pedestrians by drivers — pedestrian emerges into lane of traffic from between stationary vehicles waiting at lights — motor vehicle travelling 30-40 kilometres per hour strikes pedestrian causing serious injuries — motorist agrees that he was watching traffic lights waiting for them to change from red to green — tendency of pedestrians near traffic lights to cross between traffic — held: (Kirby P and Clarke JA; Meagher JA dissenting):

(1) The trial judge (Knoblanche DCJ) erred in rejecting the plaintiff's case that the driver concentrated on the traffic lights to the exclusion of the risk of pedestrians;

(2) In the circumstances, negligence to some degree, on the part of the driver, was established.

Stewart v Carnell (1984) 2 MVR 147 (CA); Winters v Davidson (1989) 9 MVR 239 (CA); Boyd v Elliott, Court of Appeal, unreported, 10 July 1992 considered;

(3) In an apportionment for contributory negligence the plaintiff's contribution was 80% and the defendant's 20%;

(4) New trial ordered as to damages to be reduced in accordance with such contribution for contributory negligence.

MOTOR VEHICLES - negligence - duty of care - motorist approaching intersection controlled by lights - duty to be alert to pedestrians crossing between traffic to take advantage of stopped vehicles.

APPEAL - rehearing - duty to respect findings of primary judge based on impressions of credibility - held: (Kirby P and Clarke JA; Meagher JA dissenting): The Court of Appeal in a rehearing is entitled and required to reconsider the evidence, controlled where necessary by findings express or implied on the part of the primary judge derived from the advantage that judge enjoyed of seeing and hearing witnesses and assessing their credibility.