TERRY v BEADON [1996] NSWCA 520

TERRY v BEADON SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE, SHELLER and COLE JJA 19 June 1996

[1996] NSWCA 520

MOTOR VEHICLE ACCIDENT — personal injury — damages — forseeability of risk of injury

Sheller JA. In these proceedings the appellant, Paul Terry, sued in the District Court to recover damages from the respondent, Eric Beadon, for injuries suffered by him on 8 July 1989 when the vehicle driven by the respondent ran over the appellant.

His Honour, Judge Wall QC, heard the proceedings and delivered judgment entering a verdict for the respondent on 2 September 1994. His Honour's judgment, if I may say so with respect, is comprehensive and careful. He went through the evidence in detail and made a series of findings which he set out and with which I agree and I understand there to be no challenge. Based on those findings, his Honour set out his conclusions and determinations. In thecourse of doing so he carefully and, in my opinion, correctly stated the law to be applied.

For my part, I have no reason to disagree in any way with what his Honour said or the conclusions to which he came. In the course of those conclusions, he dealt with foreseeability. He said that an ordinary reasonable driver in the position of this respondent would have foreseen that the plaintiff, who was intoxicated on the night in question, may have strayed from the alcove of a post office to which the respondent had accompanied him and moved towards the respondent's truck, and that the respondent's intention to drive the truck away from the kerb could, in the situation contemplated, involve a risk of injury to the appellant.

His Honour also concluded that the risk to the appellant was serious, involving personal injury and possible loss of life if the appellant were to be knocked down or run over by the truck as it moved from the kerb. His Honour then said: