Johnston v Stock [2014] NSWCA 147

Johnston v Stock [2014] NSWCA 147

The appellant did not breach her duty of reasonable care. She saw the respondent walking in a stumbling or zigzag manner, reduced speed from about 50 kph to about 40 kph, kept the respondent under observation, and then saw the respondent stop on the pedestrian ramp and look towards the approaching vehicle as if waiting for it to pass. In those circumstances the appellant was not required to anticipate that the respondent would take two quick steps from the kerb into the side of the vehicle. The respondent's possible intoxication did not of itself raise the standard of care. The further precautions identified by the primary judge were not required, and the finding of breach was erroneous.

Jurisdiction
Australia
Judgment Date
14 May 2014
Procedural Posture
Negligence Appeal Arising From a Road Accident Involving a Motor Vehicle and Pedestrian / Appeal From District Court Judgment Dated 15 August 2012 Before Neilson DCJ
Outcome
Appeal allowed; District Court judgment and orders set aside; judgment entered for the defendant.
Legal Topics
['road Accident Liability' 'duty of Care Owed by Drivers to Pedestrians' 'standard of Care' 'foreseeability' 'intoxicated Pedestrian' 'factual Causation' 'contributory Negligence']
['torts' 'negligence' 'civil Liability'] ['road Accident Liability' 'duty of Care Owed by Drivers to Pedestrians' 'standard of Care' 'foreseeability' 'intoxicated Pedestrian' 'factual Causation' 'contributory Negligence']

Case Brief

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Procedural Posture

Negligence Appeal Arising From a Road Accident Involving a Motor Vehicle and Pedestrian / Appeal From District Court Judgment Dated 15 August 2012 Before Neilson DCJ

Legal Issues

  1. 1 ['Whether the appellant driver breached her duty of care to the respondent pedestrian by failing to slow further, flash headlights, sound the horn, brake, steer or keep further right.' "Whether the respondent's apparent intoxication or stumbling gait increased or otherwise affected the standard of care owed by the appellant." 'Whether the precautions identified by the primary judge were required by reasonable care and would support liability.']

Ratio Decidendi

The appellant did not breach her duty of reasonable care. She saw the respondent walking in a stumbling or zigzag manner, reduced speed from about 50 kph to about 40 kph, kept the respondent under observation, and then saw the respondent stop on the pedestrian ramp and look towards the approaching vehicle as if waiting for it to pass. In those circumstances the appellant was not required to anticipate that the respondent would take two quick steps from the kerb into the side of the vehicle. The respondent's possible intoxication did not of itself raise the standard of care. The further precautions identified by the primary judge were not required, and the finding of breach was erroneous.

Court Disposition

Appeal allowed; District Court judgment and orders set aside; judgment entered for the defendant.

Orders

  • ['Appeal allowed.' "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." "Order that the respondent pay the appellant's costs of the proceedings in...