RYAN v GILL [1995] NSWCA 405

RYAN v GILL

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SHELLER and POWELL JJA 2 February 1995, 2 February 1995

[1995] NSWCA 405

Negligence — motor vehicle — pedestrian found to have stepped from median strip into path of oncoming car travelling at a speed reasonable in the circumstances — judge sees motorist — prefers motorist's evidence — held: Judge's conclusion immune from disturbance. Abalos v Australian Postal Commission (1990) 171 CLR 167 applied.

NEGLIGENCE — motor vehicles — collision with pedestrian — approach to median strip — group of pedestrians seen — speed of 30 kph — trial judge (Staunton DCJ) accepts driver's evidence that pedestrian stepped from median strip and came into collision with side mirror — judge holds that sole cause of collision was pedestrian's action — rejects arguments that car mounted median strip or was travelling at an excessive speed — held (Powell JA; Kirby P and Sheller JA concurring); (1) No error was shown in the findings of the trial judge or his conclusion and orders; (2) Having regard to their dependence upon acceptance of the driver's evidence which was not inherently improbable, the Court of Appeal was not authorised to disturb the trial judge's conclusion Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1992-1993) 177 CLR 472. Applied.

Kirby I will ask Powell JA to give the first judgment.

Powell JA By the Statement of Claim which was filed on her behalf in the District Court in November 1985 the Appellant sought to recover against the Respondent damages in respect of injuries which she sustained when she was struck by a portion of the defendant's motor vehicle when she was in Maroubra Road, Maroubra Junction, near its intersection with Anzac Parade.

The case which the Appellant sought to establish on the hearing before the trial Judge, the then Chief Judge of the District Court, was that, at the time, she was crossing at Maroubra Road from South to North and had just reached the median strip, upon which she had placed her right foot, and onto which she was about to move, at which time, so she would have had it, she felt a heavy knock on her left knee, following which her left leg collapsed and she fell heavily on the roadway. Although the Appellant did not see what had struck her, it is implicit in the case which she sought to establish on the hearing that she was struck by the defendant's motor vehicle which had been travelling East in Maroubra Road on the Northern side of the median strip, which it had suddenly, and without warning to her, mounted.