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: The ordinary reasonable driver would, I conclude, contemplate that there was a risk that the plaintiff may have left the alcove and was again on the footpath to the nearside of the truck or may have wandered to the rear of the truck and be on the roadway at the offside of the truck. He would not, I conclude, have contemplated in the time and space scale, that there was a risk that the plaintiff had fallen underneath the truck before he viewed both sides of the truck in his rear vision mirrors. It is this passage in his Honour's judgment which Mr Mooney, who appeared for the appellant, challenged. He said that there was no logical basis for hisHonour's conclusion that the ordinary reasonable driver in the position of the respondent would have foreseen that the plaintiff would have strayed from the alcove and toward the truck and a conclusion that such a reasonable driver would not have contemplated that within the same time and space scale, there was a risk that the plaintiff had fallen underneath the truck before the respondent driver had the opportunity to view both sides of the truck in his rear vision mirrors. 2 UNREPORTED JUDGMENTS I am not persuaded that there is any logical inconsistency in this. It seems to me that his Honour came to the view that what occurred was remarkable in the sense that the appellant had managed to get himself into a position where he was lying in front of the rear nearside wheel of the truck. His Honour had carefully reviewed the evidence. I agree with that review. In my opinion the challenge to his Honour's conclusion in the respect I have mentioned is simply not made out in the circumstances of this case. For that reason the appeal should be dismissed with costs. Clarke JA. I agree. Cole JA. I also agree. Clarke JA. The order of the Court will be the appeal is dismissed with costs. Orders accordingly. Counsel for the appellant: PJ Mooney Solicitors for the appellant: Delves and Wain Counsel for the respondent: HJ Mater Solicitors for the respondent: Bhim Ramrakha