Stojanoska v Fairfax [1999] NSWCA 225

New South Wales Court of Appeal CITATION : Stojanoska v Fairfax [1999] NSWCA 225 FILE NUMBER(S) : CA 40065/98 HEARING DATE(S) : 28 June 1999 JUDGMENT DATE : 28 June 1999

PARTIES : Elizabeth Stojanoska v Russell Fairfax JUDGMENT OF : Meagher JA at 1; Handley JA at 6; Fitzgerald JA at 7

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 6277/96 LOWER COURT JUDICIAL OFFICER : Downes DCJ

COUNSEL : Appellant: I.M. Newbrun Respondent: J.D. Hislop QC/R.F. Sutherland SOLICITORS : Appellant: Andrew Fegent & Co. Respondent: GIO General Limited. CATCHWORDS : motor vehicle accident - no error of trial judge. DECISION : Appeal dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40065/98 MEAGHER JA HANDLEY JA FITZGERALD JA

Monday, 28 June 1999 ELIZABETH STOJANOSKA v RUSSELL FAIRFAX JUDGMENT

1 MEAGHER JA: This is an appeal by Mrs Stojanoska who was the unsuccessful plaintiff in an action in the District Court heard by Downs DCJ. In that case she alleged negligence by the respondent, Mr Fairfax, in relation to injury she sustained as a pedestrian when she was struck by his motor vehicle on 5 October 1994. The location of the accident was some distance to the west of the intersection of Gardeners Road and Bunnerong Road, Kingsford Junction. That is a large and very difficult junction. There are traffic lights there at every important point. The evidence established that Gardeners Road to the west of the intersection carried three lanes in each direction. Significantly as the road approached the area of the intersection it effectively forked and widened. The left-hand fork itself became three lanes with two lanes for traffic turning into Anzac Parade and the third lane was in fact a bus zone. The median lane and lane beside it curve to the right and forked away from other lanes, thus permitting traffic in those lanes to turn right into the commencement of Bunnerong Road. 2 The plaintiff was crossing Gardeners Road in order to catch a bus which was on the other side of Gardeners Road. In her version she was walking briskly but his Honour believed much evidence to the contrary that she was in fact running. When she stepped on to the road she passed the bus lane and then there were two stationary lanes of cars. Again in her evidence she denied that there were any stationary cars on those two lanes of traffic but the evidence disclosed that there certainly were and that was his Honour's finding. She said in her evidence-in-chief that the point at which she crossed Gardeners Road was 200 to 300 metres before the division. In fact it was only 30 or 40 metres. She said in her evidence that she crossed before the road divided. The Judge found and the police evidence certainly supported his Honour's finding that the road had already begun dividing. She said in her evidence that she was waiting for a bus which she said she expected in about five minutes. His Honour found and there was evidence to support this, that the bus had already arrived. This no doubt explains the reason why she was running. 3 One therefore has a picture where she was running across a road through stationary cars on to other lanes in which there were no cars but where she took no trouble to see if anything was coming. The defendant respondent on the other hand who was driving his car at about 40 to 50 kilometres an hour, came down, did not see her and the accident occurred. She alleged that the defendant respondent was guilty on two counts, first that he was going at an excessive speed in all the circumstances. His Honour found, and again there is evidence to support it, that he was going at about 40 to 50 kilometres an hour in a zone which I might say was 60 kilometres an hour. He was going towards traffic lights which were then red, he had taken his foot off the accelerator but had not actually begun to brake. When he saw her which was just a moment before he hit her, he certainly braked as hard as he could, he stopped about four or five metres further on. His Honour found that in the circumstances he was not going at any excessive speed and it is difficult to see how one could make any finding to the contrary. 4 The other count which the plaintiff alleged against him was that he failed to keep a proper lookout. The law on this question is hardly of any difficulty. A motorist must always when he drives be conscious of the fact that a pedestrian may do something silly and adjust his conduct to account for that possibility. On the other hand he can hardly drive in such a way that he expects such accidents to occur every minute, otherwise no traffic would ever move. In the present case Mr Fairfax was looking straight ahead which is a motorist's primary duty. He had as much lateral vision to the left and I suppose for that matter to the right as is usual in such circumstances. He did not see the plaintiff until the last minute, when it was too late. He did not turn his head to the left so he was driving the car with a turned head and that seems hardly surprising. 5 I see no basis for any allegation that the defendant drove negligently in either of the respects alleged. In my view therefore the appeal should be dismissed with costs. 6 HANDLEY JA: I agree. 7 FITZGERALD JA: I agree. 8 MEAGHER JA: The orders will be as I have proposed.