TERENCE VESPIR v FRANCIS ANTHONY THEBRIDGE [1991] NSWCA 275

TERENCE VESPIR v FRANCIS ANTHONY THEBRIDGE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, MEAGHER and HANDLEY JJA 22 February 1991

[1991] NSWCA 275

NEGLIGENCE — duty of care — appellant struck by respondent's motor vehicle whilst opening car door — alleges breach of duty of care and failure to keep a proper look out — trial judge (McDevitt DCJ) dismisses claim for damages for negligence — on appeal no negligence found.

Meagher JA In this matter the plaintiff, Mr Vespir, sued the respondent, Mr Thebridge, for injuries resulting from a motor car accident which took place on 14 June 1983. On that occasion the plaintiff had parked his vehicle, which was a Ford Falcon van, at a road in Caringbah where he had to visit a repair shop. The undisputed evidence is that he had parked his van about 50 metres from a corner. He said that when he came out of the repair shop he walked to the rear of his van and he looked up and down the road. He said he saw nothing approaching on his right as he walked around his vehicle to the driver's door and began to open it. He had half opened it when he said, "Bang, the car ran into me." He had, as I said, looked down the street and seen nothing approaching. He had heard no sound. The vehicle which ran into him was driven by Mr Thebridge and his vehicle stopped about 100 metres further on. There followed an interchange between the plaintiff and Mr Thebridge which does not seem to me of any particular relevance.

His Honour on that very meagre evidence failed to find a verdict for the plaintiff. His Honour said no evidence was led which suggested any breach of duty of care by the defendant. There was no evidence of excessive speed or a failure to keep a proper lookout. That finding of his Honour is challenged on appeal. It has not been suggested that there was any evidence of excessive speed on behalf of Mr Thebridge. Indeed, so far as the evidence goes, the only inference which can be drawn is that Mr Thebridge was not travelling at excessive speed. However, counsel for the plaintiff/appellant did suggest there was evidence of a failure to keep a proper look out.