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. That account was supported by two independent witnesses one driving south and one driving north. Mr Bouteris, who was driving north behind the respondent's vehicle, gave this evidence. He spoke of the truck on the eastern side of the road but had it moving in a southerly direction; that is, towards him. He saw the appellant start to run across the road and, in short, what happened, according to his account, was that the appellant ran from behind the truck "straight into an oncoming vehicle", which was of course the vehicle driven by the respondent. Mr Brennan, who was driving south, also saw a truck which, to his recollection, like that of Mr Bouteris, was not stationary but moving in a southerly direction. He saw the appellant run from between the truck and his vehicle, which would be from behind the truck so far as the respondent was 2 UNREPORTED JUDGMENTS concerned. The appellant, so he says, ran between the truck and his vehicle and the respondent's vehicle veered sharply to the left but struck the appellant with the offside mudguard. Evidence was given by a police officer which did not advance the matter very much, except that he estimated the point of impact as being three metres east of the western kerb of Livingstone Road and estimated the width of Livingstone Road as fifteen metres. It was daylight and there were no impediments to visibility, save, according to the respondent, from the presence of the truck. Against this background of facts his Honour Judge Jones found for the respondent and it is from that order that the appeal comes. The appellant has given us the assistance of very detailed written submissions which analyse the material with great thoroughness and they have been supplemented by oral submissions. The arguments put to us may be summarised in this way. First of all, it is said that the learned judge failed to make findings in resolution of what were conflicts in the evidence. It is true that there are conflicts. For example, that between the respondent's assertion that the truck was parked and the evidence of the two witnesses that it was moving. There is a discrepancy also between the respondent's own estimate by the police officer. There are, I think, also some other aspects of the respondent's evidence - for example, his proximity to the vehicles parked on his left-hand side which might have formed the subject of analysis. But the evidence was really within a small compass. The learned judge summarised it all, if I may say so, very accurately and quite fully and having set it all out he then expressed the conclusion, noting the assistance he received from the demeanour of the witnesses, that the defendant had not been guilty of any breach of duty but had driven prudently. In all the circumstances, I do not think that the failure to expatiate further upon possible conflicts can be successfully made the subject of any appeal. The essence of the matter was that the plaintiff/appellant ran across the road and did so from a position which shielded him from the early view of the respondent. That his Honour recites in the evidence and it is implicit in the way in which he states the conclusion. I do not think there is substance in this ground. Similarly, I do not think that the appellant is able to support the second ground, which consists of the submission that the learned judge failed to give adequate reasons for his conclusion about negligence. I would have thought on reading the judgment as a whole it is perfectly plain that the learned judge must have concluded that the appellant ran out from behind the truck which shielded him, as I have said, from the early view of the respondent, and that the respondent, in seeing him only one metre away, and when his friend drew his attention to him, was not exhibiting any want of care. It must be borne in mind that there is evidence - that is, from the respondent - that vehicles travelling south were moving towards the centre of the road in order to pass this truck and in that event the vision of the respondent might well have been impeded by the fact that there were at least two lanes of traffic in substance proceeding towards him. What he said in fact on this point in examination in chief was that the appellant ran out from behind parked cars. That is, the parked cars were cars which had been pulling round the truck but had stopped because there was a traffic hold-up of some sort further to the south. As I have said, I do not think that there is here such a failure to give reasons as will ground an appeal. URJ CHI CONG DUONG v BOURKE (Hope AJA) 3 Thirdly, it is suggested that the learned judge reversed the onus of proof by considering whether the actions of the plaintiff were negligent rather than whether the conduct of the defendant had been negligent. I do not think that this is what his Honour did. His reference to the fact that it was the appellant who caused the accident is merely an illustration of what he thought was the nub of the facts. It does not suggest to me that he was approaching the matter from the standpoint of the wrong onus of proof. The fourth ground of appeal was not pressed and, finally, it was submitted that the learned judge failed to give proper effect to the failure of the respondent to call the passenger Santos. Because of the paucity of detail in the appellant's case at the trial, the most that can be said here, I would think, is that had the witness been called his evidence would not have assisted the respondent's case. The learned judge does not mention that but I am far from concluding that that represents any miscarriage of justice. As was pointed out in argument, the fact that a passenger sees a pedestrian before the driver does is not of itself probative of the driver's failure to keep a proper look-out. There are all sorts of reasons why the passenger may see something which the driver does not see or, as in this case, apparently see something before the driver. However, I would not myself draw any stringent inference from the failure of Santos to be called. In any event, as I have said, it is not truly a Jones v Dunkel situation but merely one in which one can make the assumption to which I have earlier referred. I do not think that affects the matter. In my view, this was a case in which there was evidence before the learned judge that the appellant ran out across the road in such a fashion as to give the respondent no reasonable opportunity to avoid him. It is possible that different mines might take different views of this evidence. However, as far as I am concerned, I am not satisfied that the learned judge was wrong and I do not therefore regard myself as authorised to intervene. In my view, the appeal should be dismissed with costs. Priestley J It seems to me that there is a degree of force in the appellant's criticism of the judge's not having made detailed findings of fact. However, notwithstanding that, I agree with what Samuels JA has said as to the factual basis upon which the trial judge must have decided as he did. Upon reading the materials that were before him in conjunction with his reasons, it seems to me to be reasonably clear that although the trial judge did not state his views on the facts as particularly as Samuels JA has, nevertheless they must have been along the lines which Samuels JA has explained. On that basis, it seems to me that all of the grounds urged upon the Court today must fail. I agree that the appeal should be dismissed. Hope AJA I agree. The order is that the appeal is dismissed with costs. Counsel for Appellant: M Williams QC with R Bell Solicitors for Appellant: Michell, Sillar Brown Counsel for Respondent: JJ Steele Solicitor for Respondent: Mr GE Lazar