TSEKOURAS v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1994] NSWCA 323

TSEKOURAS vy GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and MEAGHER JJA 27 April 1994, 14 July 1994

[1994] NSWCA 323

FACTS: Appellant struck by motor vehicle whilst crossing a road under the influence of alcohol. The result at trial was a verdict in his favour for $179,552.00, reduced by 40% to $107,731.20 to account for contributory negligence. Appeal on liability and quantum.

HELD:

(1) The appeal succeeded in part only, damages being allowed for lost tips as a component of future wages. However, errors in calculating future wages and interest on past wage loss led to a corrected award of $103,885.20. The finding of 40% contributory negligence was not disturbed: Padrebersek v Australian Lever and Steel Pty Ltd (1985) 59 ALJR 492, followed.

ORDERS:

1. Appeal allowed;

2. Verdict and judgment set aside;

3. In lieu of judgment, order the respondent to pay the appellant the sum of $103,885.20, such judgment to take effect as from 19 November 1991; and

4. No order as to costs.

Mahoney JA I agree with the orders proposed by Meagher JA, whose judgment I have had the advantage of reading.

Mr Gross QC, in his submissions for Mr Tsekouras, submitted that, in finding the plaintiff guilty of contributory negligence, his Honour had made two main errors. He submitted that his Honour erred in holding that the plaintiff had gone to the median strip in the road and in holding that the taxi cab in question had been going north. I am not satisfied that his Honour erred in these respects. But, however that be, I do not think that the judge was wrong in finding contributory negligence. Whatever view one takes of the events of the evening, Mr Tsekouras took less than proper care for his own safety.

The extent of the contributory negligence is, of course, affected by what precisely he did. But, on any view of the facts, a reduction of the damages by forty per cent was in my opinion not an error. It must have been plain to the plaintiff that vehicles driven by Mr Peck and the other driver would create danger for him if he remained on or came out onto the road. It was not contested that Mr Peck was negligent. In my opinion, the extent of his responsibility for what occurred was certainly no higher than sixty per cent. A driver on a public street must, day or night, keep a proper lookout for pedestrians who are on the road. There are difficulties in seeing pedestrians at night. A driver must take this into account. But it is proper that a pedestrian also recognise that at night there may, for example, be a delay in the process of perception that the pedestrian is on the road. In this case, Mr Peck said that, in effect, Mr Tsekouras came into his vision when he came from in front of the line of approach of a vehicle further down the road than Mr Peck was. There was, he said, little chance of him avoiding Mr Tsekouras. I do not depart from the judge's findings in this regard.