ABDELAZIZ v HOLLAND [1996] NSWCA 4

ABDELAZIZ v HOLLAND

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

HANDLEY JA, SHELLER JA and COLE JA 21 June 1996

[1996] NSWCA 4

NEGLIGENCE-no question of principle.

Cole JA. Judge Garling dismissed a claim brought by the appellant against the respondent in respect of injuries suffered in a collision which occurred on 15 April 1989. On that day, the appellant was riding an unregistered trail bike in area adjacent to Barton Park, Arncliffe. At Barton Park, there is a baseball oval to the north of a large gravelled area used for car parking. The carpark area was fenced off except that to the east there was a break in the chain wire fence. East of that break is a large, flat open area which trail bike riders use. The respondent had driven up a ramp into the carpark area. There were vehicles parked in southern area of the carpark. He went slightly to the left and he was driving in an easterly direction somewhat to the rear of a series of cars parked on the northern boundary of the carpark adjacent to the baseball oval. The respondent was found to be travelling between fifteen to twenty kilometres per hour looking for a carpark, following an Astra motor vehicle. The Astra turned left into a carparking space adjacent tothe northern boundary. The respondent commenced to turn to his left to park some six spaces further from the eastern fence and the gap in it. As he did so, he noticed for the first time the trail bike being ridden by the appellant coming towards him from the direction of the gap in the fence to the east.

The appellant was travelling at about thirty-five kilometres per hour or some ten metres per second. The gap in the fence was about thirty metres away, but the respondent didn't see the appellant until he was about fifteen metres away. In contrast, the appellant said he didn't see the respondent's vehicle until he was approximately six metres from it. He crashed into the respondent driver's side door. The trial judge rejected that the respondent was negligent because he failed to keep a proper look out.