SZMYTA v JEAN-LOUIS and ANOR [1995] NSWCA 466

SZMYTA v JEAN-LOUIS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER, POWELL and COLE JJA 8 February 1995, 8 February 1995

[1995] NSWCA 466

Sheller JA The court is in a position to give judgment now and I will ask Cole J to give the first judgment.

Cole J The appellant Henry Szmytra was injured when he was struck by a motor vehicle at approximately 1.10pm on 10 February 1982. He was struck by a vehicle, being a taxicab, being driven by the first defendant/first respondent, which was owned by the second defendant/second respondent.

The accounts given of the accident are in short compass. Briefly put, the appellant asserted that he was walking south on the footpath on the eastern side of George Street between Martin Place and King Street. He wished to cross to the western side of George Street. He said that he glanced to the right, having his back towards Martin Place, in a northerly direction along George Street. He did not see any vehicle. He said he stepped off the kerb, started to cross and was struck by the taxi driven by the first respondent. He did not see that vehicle. According to the appellant he was struck approximately halfway to the centreline of George Street; that is past the first lane and somewhere in the second lane, there being four lanes in George Street.

The account given by the taxidriver was a little different. He was driving south in the second lane in George Street. He was travelling at fifteen kilometres per hour approximately. He said that the appellant "just sort of galloped across the road right in front of me." He tooted, swerved towards the kerb and braked and he hit the appellant apparently a slight blow with the front of the driver's side of his vehicle. Subsequently the first respondent drove the appellant to hospital. Whilst he was doing so the appellant said to him, "I am sorry, it was my fault."