SEERS v TURRELL [1997] NSWCA 279

SEERS v TURRELL

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL COLE, BEAZLEY, and STEIN JJA

5 and 11 September 1997, 19 November 1997

[1997] NSWCA 279

Negligence — Driver and pedestrian — Failure to slow down — Failure to keep a proper lookout — Factual basis for finding of negligence — Contributory negligence — Potential of motor vehicle to cause a greater harm a relevant factor in assessment.

This appeal arose from an accident which occurred on 8 November 1994 in which the plaintiff/respondent, a pedestrian, was crossing a road. There was a pedestrian refuge in the middle of the road. The respondent crossed one side of the road onto the refuge. No finding was made by the trial judge as to whether the respondent had stopped at the refuge, although she had given evidence that she did. A witness said that she did not. The respondent, as she quickly continued to cross the road, was struck by the defendant/appellant, who was driving her motor vehicle in a southerly direction.

The trial judge found for the respondent, but assessed contributory negligence at 20 per cent. There were two central issues on appeal. The first concerned whether the trial judge had made the necessary findings of fact in order to determine the matters in issue. The second was whether the apportionment of contributory negligence was unreasonably low.

HELD, dismissing the appeal with costs:

(1) (per Beazley JA, Stein JA concurring, Cole JA dissenting) The trial judge made a determination on the basis that being aware (i) that the respondent was crossing the roadway, (ii) that there was a pedestrian refuge upon the roadway at the point where the respondent was crossing, and (iii) that the respondent had reached the refuge, at which point the appellant lost sight of the respondent, the appellant was negligent in failing to stop prior to the pedestrian refuge. This determination did not require a finding of any other facts to provide a proper basis for it.