WALKER v BAKER [1998] NSWCA 251

WALKER v BAKER SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

HANDLEY JA, SHELLER JA and COLE JA 6 March 1998 [1998] NSWCA 251

MOTOR Vehicle Accident — Held: Trial judge's decision was justified given the evidence at trial.

Cole JA. The appellant, Christine Louise Walker, was injured on 18 September 1994 when she was struck by a motor vehicle driven by the respondent. The accident occurred within the intersection of Bobbin Head Road and Burns Road Turramurra. Bobbin Head Road runs north south and Burns Road runs east west.

The respondent approached the intersection in the centre lane of Bobbin Head Road intending to make a right hand turn into Burns Road at the intersection which was controlled by traffic lights. It was about 7.25pm in the evening, it was dark and vehicles approaching the intersection had their headlights illuminated. The respondent had entered the intersection at which time the lights facing him had turned to amber. He had slowed to a crawl and was concentrating upon a vehicle approaching him inBobbin Head Road from the north watching to see if that vehicle would enter the intersection through the amber light or would stop. At that time the appellant, and her brother, Mr Wilson, as Downs DCJ found, 'ran diagonally from behind the defendant's vehicle into its path and the defendant had no reason to suspect that anyone would be so foolish to do so in the circumstances, and he did not have any opportunity to stop any faster than he did'. Thus a verdict was entered for the defendant/respondent.

The circumstances giving rise to the appellant and her brother running into the intersection were that she, with her husband and her brother and sister-in-law, had been travelling in Bobbin Head Road in a southerly direction when, as they approached the intersection with Burns Road, they saw a possum in distress somewhere in the centre of the intersection. The appellant's husband drove through the intersection and stopped about 30 metres past it. The appellant and Mr Wilson alighted from the vehicle and ran back into the intersection to endeavour to rescue the possum. The trial judge found that in so doing they 'ran from diagonally behind the offside of the respondent's vehicle into his path'.