State of New South Wales v Colm McGuirk [2015] NSWLC 1

Local Court New South Wales

Medium Neutral Citation: State of New South Wales v Colm McGuirk [2015] NSWLC 1 Hearing dates: 3 February 2015 Decision date: 11 February 2015 Jurisdiction: Civil Before: Assessor Olischlager Decision: 1. Verdict for the defendant. 2. Order the plaintiff to pay the defendant's costs of $767.00 within 28 days. Catchwords: CIVIL LIABILITY - vehicle collision - duty of care owed by pedestrian - contributory negligence Legislation Cited: Civil Liability Act 2002 (NSW), s 5B Road Rules 2014 (NSW), r 236(1) Cases Cited: Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1 Cynthia Gaye Anne Shaw by her Next Friend Phillip John Lyster v Monley [1999] WADC 143 Jones v Bradley [2003] NSWCA 81 Pennington v Norris [1956] HCA 26; 96 CLR 10 Teubner v Humble [1963] HCA 11; 108 CLR 491 Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505 Category: Principal judgment Parties: State of New South Wales (Plaintiff) Colm McGuirk (Defendant) Representation: Robertson Saxton Primrose Dunn Solicitors (Solicitor for the Plaintiff) Drayton Sher Lawyers (Solicitor for the Defendant) File Number(s): 2014/00219543 Publication restriction: Nil

​JUDGMENT 1. This is a claim brought by the State of New South Wales on behalf of NSW Police seeking to recover damages to a police motor vehicle. The damages arose in a collision on 25 February 2011 between the police motor vehicle and the defendant, Colm McGuirk, who was a pedestrian. 2. Mr McGuirk was injured in the collision and has no recollection of the events that immediately led to the collision. Accordingly, the account of what occurred is based on the statements provided by police officers in the plaintiff's vehicle as well as the driver and passenger in a following taxi vehicle. The facts are largely uncontroversial. 3. At approximately 12:05 am on 25 February 2011 the police motor vehicle driven by Constable Wensemius was travelling in a westerly direction along Old South Head Road at Bondi NSW. Constable Cohen was in the passenger seat. The police vehicle was travelling in the right hand lane of two lanes in a westerly direction at a speed of between 40 to 50 km per hour. A taxi vehicle driven by Mr Chaaya with a passenger, Ms Gustafsson, was travelling approximately 50 m behind the police vehicle. The speed limit along this section of Old South Head Road was 50 km per hour. Although it was dark there was street lighting in the area and the police vehicle had its headlights illuminated. 4. As the police vehicle entered the intersection of Old South Head Road and Penkivil Street, Mr McGuirk ran onto the roadway of Old South Head Road from a south westerly direction in front of the approaching police vehicle in an attempt to cross the roadway. He was struck on the right hip by the front left-hand side of the police vehicle and was propelled onto the bonnet; smashing the windscreen and then landing on the road surface. 5. Mr McGuirk had a number of alcoholic beverages earlier that evening. He was intoxicated and appears not to have been aware of the presence of the police vehicle at any moment prior to being struck. 6. The driver of the police vehicle, Constable Wensemius, gave the following evidence: "As I was approaching Penkivil Street, Bondi, I saw that the traffic light facing me was green. I had my foot on the accelerator as I was on an incline up the hill, however my speed was not increase [sic]. I did not see any persons on either side of the road. As I began to enter the intersection, I suddenly saw a figure less than a metre from the front nearside of Eastern Suburbs 36 illuminated by the headlight. I only glimpsed the person briefly, but I saw that it appeared to be a made [sic] in his 20s [sic] with short shaved hair." 1. The passenger, Constable Cohen, gave the following evidence: "At this time we approached the intersection of Penkivil Street and Old South Head Road, Bondi, when suddenly I caught a glimpse from [sic] my peripheral vision from my left hand side and saw what appeared to be a male running towards our vehicle on Old South Head Road. The male was running upon Old South Head Road and he appeared to have come from Penkivil Street and was running directly towards us in a northerly direction." 1. The evidence of Mr Chaaya and Ms Gustaffson travelling behind in the taxi has limited value in that neither witness saw Mr McGuirk prior to the collision or the collision itself. Their evidence is corroborative of the speed at which the police vehicle was travelling. They were following the police vehicle for a period of time prior to the collision. 2. Mr McGuirk suffered injuries which were fortunately not life threatening. The cost of repairing the police vehicle together with the loss assessment fee was $6,877.11. The plaintiff seeks to recover those costs. 3. The issues between the parties to be resolved by the Court, are: 1. Whether the defendant breached a duty of care owed to the plaintiff in causing the collision; and 2. If so, whether the plaintiff's driver was contributory negligent in causing the collision and the degree to which the plaintiff's driver was so contributory negligent.