Lyons v Fletcher [2014] NSWCA 67

Procedural Posture

Torts Negligence Pedestrian Road Accident Appeal / Appeal From District Court Verdict for the Respondent

Legal Issues

1. 1 ["Whether the trial judge erred in not finding that Mr Fletcher's failure to keep a proper lookout caused Ms Lyons' injuries." 'Whether Mr Fletcher breached his duty of care by driving at 55 to 60 kilometres per hour without high beam headlights or by driving too fast with headlights on low beam.' "Whether any breach of duty caused Ms Lyons' injuries for the purposes of s 5D of the Civil Liability Act 2002 (NSW)." "Whether the trial judge's finding that Ms Lyons was jogging across Gunnedah Road was open on the evidence."]

Ratio Decidendi

Although a majority held that Mr Fletcher breached his duty of care by not using high beam headlights immediately before the accident, Ms Lyons did not establish factual causation. On the trial judge's findings, which were open on the evidence, Ms Lyons jogged across Gunnedah Road at about 3.8 metres per second and Mr Fletcher would not have had sufficient time to perceive her and avoid the collision even if he had not looked down at his dashboard and had been using high beam headlights. The injury would not have been avoided absent the alleged breach, so the appeal failed.

Court Disposition

Appeal dismissed with costs.

Orders

• ['The appeal be dismissed.' "The appellant pay the respondent's costs of the appeal."]