CHI CONG DUONG v BOURKE [1989] NSWCA 35

CHI CONG DUONG v BOURKE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS AP, PRIESTLEY J and Hope AJA 30 November 1989

[1989] NSWCA 35 NEGLIGENCE-motor vehicle-no question of principle.

Samuels AP This appeal arises out of an accident which occurred on 8 December 1983 in Livingstone Road, Marrickville, in which the plaintiff (the appellant) while crossing the road from east to west, was struck by or ran into the defendant/respondent's vehicle which was travelling north at a speed of about sixty kilometres per hour.

The appellant had no recollection of the incident, except that he did recall that he ran across the road, having been dropped on the eastern side of the road opposite his house by a friend. He remembers having to wait for two minutes or so because there was some traffic passing in both directions.

That in substance was the plaintiff's case, eked out by the evidence of his friend, who was driving away to the south, heard a thud, looked in his rear vision mirror and saw that the plaintiff had been struck by a vehicle at about the centre of the road.

The respondent's evidence was this. As I have said, he was travelling north. He put his speed at about sixty kilometres per hour. He had at that time had a provisional driving licence for only about six months. There was, he said, parked on the eastern side of Livingstone Road a small pantechnicon type of vehicle. Cars travelling south had to pull out towards the centre of the road in order to pass the truck. He in response to that situation moved towards his left and on his left, on the western side of the road, there were parked vehicles for much of the distance towards the point at which the impact finally occurred.

He saw the appellant running when the appellant was about one metre away from his vehicle, his attention having been drawn to the appellant's presence by a word from a passenger, Mr Santos. He applied his brakes and swerved to his left, or he applied his brakes and they grabbed and turned him to the left, but the appellant ran into the windscreen of his vehicle.