Johnston v Stock [2014] NSWCA 147

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Johnston v Stock [2014] NSWCA 147 Hearing dates: 24 April 2014 Decision date: 14 May 2014 Before: Meagher JA at [1]; Barrett JA at [10]; Ward JA at [41] Decision: 1. Appeal allowed. 2. Set aside the judgment and orders of the District Court dated 15 August 2012 and in lieu thereof order as follows: (a) Judgment for the defendant. (b) Order that the plaintiff pay the defendant's costs of the proceedings. 3. Order that the respondent pay the appellant's costs of the proceedings in this Court. 4. Order that the respondent have a certificate under the Suitors Fund Act 1953 (NSW) if otherwise qualified. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - negligence - road accident cases - liability of drivers of vehicles - duty of care and standard of care owed to pedestrians - pedestrian waiting to cross the road and apparently watching the approaching vehicle - pedestrian walks into the side of the vehicle - pedestrian significantly intoxicated - significance of that factor Legislation Cited: Civil Liability Act 2002 (NSW) Cases Cited: Derrick v Cheung [2001] HCA 48; 181 ALR 301 Draca v Silva [2012] NSWCA 312 Manley v Alexander [2005] HCA 79; 80 ALJR 413 Marien v Gardiner; Marien v H J Heinz Company Australia Ltd [2013] NSWCA 396 Mobbs v Kain [2009] NSWCA 301 Stewart v Carnell (1984) 2 MVR 147 Vale v Eggins [2006] NSWCA 348; 46 MVR 514 Category: Principal judgment Parties: Kylie Ann Johnston (Appellant) Julianne Rachelle Stock (Respondent) Representation: Counsel: R K Rewell SC/J B Turnbull (Appellant) I D M Roberts SC/G Radburn (Respondent) Solicitors: T L Lawyers (Appellant) Bourke Love Lawyers (Respondent) File Number(s): 2012/283122 Decision under appeal Date of Decision: 2012-08-15 00:00:00 Before: Neilson DCJ File Number(s): 2011/337995