KEDERIAN v JOHNSON (by his next friend JOHNSON) [1996] NSWCA 297

KEDERIAN v JOHNSON (by his next friend JOHNSON) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, HANDLEY and COLE JJA 24 September 1996

[1996] NSWCA 297

MOTOR VEHICLE ACCIDENT — Findings of fact — Finding basically correct.

Meagher JA Ex tempore

This is an appeal against the Judgment in the verdict of His Honour McLachlan J. The appellant Mrs Kederian was driving her Nissan Skyline Sedan west in Showground Road at about 10 minutes past 3 on 8 April 1991. Showground Road is a road in Castle Hill which runs roughly east west. It is bitumen sealed, straight and approximately 13 metres wide. It carries a considerable volume of traffic in each direction. At the time the speed limit was 60 km per hour and she was driving at a rate variously estimated by different witnesses including herself at no less than 50 and no more than 60 kilometres an hour.

His Honour found that the upper of those two figures was probably the correct one and I see no reason to disturb his Honour's finding in this regard. The respondent who was the plaintiff below was then aged four and a half years. He had been to pre-school and he was standing with his mother on the grass verge of the northern side of Showground Road when he suddenly ran on to the road in the path of the appellant's vehicle. It is unclear whether he did that in a straight line or at an angle.

Mrs Kederian swerved to her left, but he ran into her and damaged himself on the offside mirror of her car. His Honour found that she had at all material times a clear vision for some distance ahead of her, that her speed whether it was 50 or 60 kilometres per hour was too fast in the circumstances and that she failed in her duty to guard against the event that one or more children might do exactly what the plaintiff, the present respondent did.