Fogarty v Creasey [2002] NSWCA 318

New South Wales Court of Appeal

CITATION : Fogarty v Creasey [2002] NSWCA 318 FILE NUMBER(S) : CA 40090/02 HEARING DATE(S) : 12 September 2002 JUDGMENT DATE : 23 September 2002

PARTIES : Helen Cynthia Fogarty (Appellant) Anthony John Creasey (Respondent) JUDGMENT OF : Meagher JA at 1; Beazley JA at 4; Heydon JA at 5

LOWER COURT JURISDICTION : District Court LOWER COURT DC 1121/01 FILE NUMBER(S) : LOWER COURT Balla DCJ JUDICIAL OFFICER :

COUNSEL : Mr E G H Cox (Appellant) Mr M B Williams (Respondent) SOLICITORS : Patterson Houen & Commins (Appellant) McCourts (Respondent) CATCHWORDS : Tort - negligence - duty of care - existence - scope - motor vehicle collision - whether defendant keeping a proper lookout - breach - evidence of - findings of fact - Tort - negligence - duty of care - causation - whether alleged breach of duty causative of motor vehicle collision - no such causation - Practice - pleadings - grounds upon which trial run - where appeal sought to be run on different grounds - whether defendant surprised - no surprise where argument run on appeal pleaded at trial - ND CASES CITED: Knight v Maclean [2002] NSWCA 314 DECISION : The appeal is dismissed; the appellant is to pay the respondent's costs of the appeal.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40090/02 DC 1121/01

MEAGHER JA BEAZLEY JA HEYDON JA

23 September 2002 FOGARTY v CREASEY Judgment 1 MEAGHER JA: I have had the privilege of reading in draft the judgment of Heydon JA in this matter. I agree with it, both the orders he proposes and his reasons. 2 In the recent decision of Knight v Maclean [2002] NSWCA 314 Heydon JA said: "It is not the law that a driver complying with the minimum requirements of the law of negligence must drive in such a way as to anticipate everything that a pedestrian might do at all stages of every journey, or to be in a position to reduce speed to levels which will avoid any risk of a collision at all stages of any journey. Yet in the circumstances of the present case the trial judge's test would entail that duty."