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. From the bare fact that there was an accident which involved Mr Thebridge's car hitting the plaintiffs car door, one cannot draw an inference either way. That is equally consistent with negligence or no negligence. But what has been put on behalf of the appellant is that there was 50 metres which Mr Thebridge had in which to observe the plaintiff and he obviously failed in his duty to observe the plaintiff, as is indicated from the fact that he had come into impact with the plaintiff and the door. And in this regard our attention has been drawn to the fact that it is not merely a matter of Mr Thebridge hitting the car door, it is also a matter of him hitting the plaintiff as well. In my view, the evidence is not so strong that an inference of negligence should have been drawn against Mr Thebridge. One does not know from the very scanty evidence, for example, how long it took the plaintiff from the moment he looked to his right to the moment when he opened the door. One does not know how he opened the door, in other words, one does not know whether he opened 2 UNREPORTED JUDGMENTS it from some distance from the motor car or standing very close to the motor car. One does not know the state of the oncoming traffic on the other side of the double yellow lines. Depending on which variations of these facts one postulates there might or might not have been negligence of Mr Thebridge. The plaintiff, in my view, did not prove a state of facts from which it was more probable than not that Mr Thebridge was negligent. The inference does seem to suggest itself that Mr Thebridge could not have been standing flush against the motor van in question, because of the fact that the impact propelled him into the car and the further fact that very little damage was suffered, one would infer that the blow was only a glancing blow and one would further infer that he could not have been standing very close to the vehicle at the time. In those circumstances, I do not see how this Court can uphold the appeal and, in my view, the appeal should be dismissed with costs. Gleeson CJ I agree with the orders proposed by Meagher JA. I would only add these brief comments. As Meagher JA has pointed out the evidence as to the occurrence was extremely scant. Mr Thebridge had died before the trial came on and for that reason he was not called as a witness. The only other witness apart from the plaintiff himself was his passenger Mr Klaic whose evidence indicates that he saw very little of what occurred. The plaintiffs account of the relevant occurrence was almost completely silent on what I would have thought was the critical question, that is to say, what exactly the plaintiff's movements were between the time he looked from the rear of his car down the street and the time when, having opened the front door to some extent, he was struck by the vehicle being driven by Mr Thebridge. One thing which seems clear is when Mr Thebridge's vehicle struck the appellant, it must have been going at quite a low speed and it must have struck him a relatively glancing blow. It must have been going at a slow speed because of the relatively slight nature of the damage done by the impact and it must have struck the appellant a glancing blow because the consequence of it was the appellant was propelled in through the partly opened door of the vehicle. I do not consider that the evidence justified an inference that Mr Thebridge failed to keep a proper look out or indeed, that he failed to see the appellant. It is entirely consistent with the evidence that the cause of the accident was an unexpected and careless move out into the path of Mr Thebridge's vehicle by the appellant. For those reasons I agree that the appeal should be dismissed. Handley JA I agree with the reasons for judgment of Meagher JA and the Chief Justice. Appeal dismissed with costs. Counsel for the Appellant: RP McLOUGHLIN Counsel for the Respondent: P BELL Solicitor for the Appellant: KENCALO and RIMES - LIVERPOOL Solicitor for the Respondent: G LEEDS