FERNANDES v HAYSON [1989] NSWCA 78

FERNANDES v HAYSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, KIRBY P and SAMUELS JA 21 November 1989, 21 November 1989

[1989] NSWCA 78

NEGLIGENCE — no question of principle. ORDER Appeal dismissed with costs.

Samuels JA His Honour Judge Knight heard this action in the District Court on 3 June 1988. The plaintiff's case - that is, the case of the present appellant, Mr Fernandes - was that he was driving his motor cycle west in Parramatta Road on 18 September 1977 at about 3.16 pm in the kerbside lane when the defendant, who was driving a van in the centre lane about two metres ahead of the appellant's motor cycle, suddenly cut across the appellant's bows forcing him up onto the footpath and off the motor cycle, by reason of which he sustained injury.

The defendant's case - the case of the present respondent - was quite the contrary. He agreed that he did change lanes but that, having looked in his rear vision mirrors before doing so, and having seen no traffic which might be affected by that manoeuvre, had not in any way interfered with the progress of the appellant's motor cycle or caused him the injuries which he alleged.

In this account the respondent was supported by his wife, who was a passenger in the front seat of the vehicle and who, happening to look into the passenger's side external rear vision mirror, saw the appellant some distance behind wobbling on his motor cycle.

The account of the respondent and his wife was in turn supported by the evidence of an independent witness, a Mr Harry, known to none of the parties, who was driving a vehicle behind the appellant's motor cycle. He saw the appellant clip the kerb, as he described it, and come off the motor cycle. He did not see any vehicle whose manoeuvres caused or contributed to or appeared to cause or contribute to that accident.