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. On appeal, it was argued that the trial judge committed two errors. The first was that he treated the carpark as a road and the second that he overlooked the fact that the motor cycle must have been in clear vision of the defendant at all times from the moment he entered the carpark until collision. Regarding the first matter, the trial judge said 'It may have been able to have been said if the defendant driver had been in another area of the carpark, that he should have been looking for a vehicle which may have travelled in that area of the carpark, but I do not see how he could expect the vehicle to be travelling on what would normally be the completely incorrect side of the road, at really quite a high speed in this sort of area, when he was going to an area where he was entitled to park.' That comment was unrelated to the prior finding of the trial judge that the defendant had not been negligent. The referenceto a road was simply adopting the terminology used by counsel during the trial including the appellant's then counsel. 2 UNREPORTED JUDGMENTS Regarding the ground of failing to keep a proper look out, the appellant's evidence was that he had clear vision of the fence through which the appellant came at thirty-five kilometres an hour only after the Astra vehicle had turned into its parking spot some six car spaces or about twenty metres or so ahead of the slot into which the respondent was intending to park. The respondent agreed that the motor bike was only some fifteen metres from him when he first saw it after having commenced the turn to park. The respondent was unaware that there were trail bikes in the carpark area, having been there on frequent occasions in the past and not having seen them in that area, although one had passed in front of him as he entered the carpark on this occasion. He did not expect to be confronted by motor cycles, which were in fact prohibited in the parking area. In those circumstances, I see no reason to disturb the trial judge's finding that there was no failure on the part of the respondent to keep a proper look out having regard to the brief distances involved between the respondent's vision towards the fence becoming clear after the turn-off of the vehicle ahead of him and his turning to park. His vision was thus unobscured for only a second or two during which time the appellant drove at about thirty-five kilometres per hour from the area of the gap in the fence before running into the driver's side of the turning vehicle. The trial judge expressed the view that there was nothing the respondent could have done to avoid the collision. I agree. In my opinion, the appeal should be dismissed with costs. Handley JA. I agree. Sheller JA. I also agree. Handley JA. The orders of the Court therefore are, appeal dismissed with costs. Orders accordingly. Counsel for the appellant: B M J Toomey QC/G M Swinton Solicitors for the appellant: Leitch Hasson and Dent Counsel for the respondent: D J Russell Solicitors for the respondent: G M Meadows