NUNES v RUSTANDI SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL CLARKE JA, HANDLEY JA and COLE JA 20 June 1996 [1996] NSWCA 406 NEGLIGENCE — no question of principle. Cole JA. Judge McLachlan found that at 2.30pm on 8 November 1991, the appellant Jose Nunes walked 'a couple of paces from the kerb' at Market Street in a southerly direction and 'ran into the near side front of the defendant's car'. A photograph of the defendant's car showed a dent on the near side front mudguard over the wheel arch about two feet from the front of the vehicle. The trial judge found that the appellant may have slipped whilst so walking as he had said in a number of statements. The trial judge had no doubt at all that the appellant moved from a safe position on the footpath into the line of traffic of the defendant's car. The trial judge acknowledged that the test of whether the respondent was negligent depended upon whether he was taking 'reasonable care to avoid the risk of foreseeable injury.' He held that he was as he was driving at a reasonable speed of approximatelythirty to forty kilometres per hour when the appellant stepped out onto the roadway and collided with the side of his vehicle. All allegations of negligence were rejected. The appellant does not challenge the primary judge's findings of fact. Nonetheless, he contends that the judge ought to have found that the respondent failed to keep a proper look out or to take proper evasive action to avoid the collision and thus should have found negligence. Market Street in the Central Business District where the accident occurred has one lane travelling east. It was in that lane that the respondent was travelling. The respondent gave evidence that he saw 'pedestrian along the path', meaning the footpath but the appellant 'just run to the side of my car.' The respondent did not see the appellant until 'his position was the same with my car.' It is entirely understandable that a driver travelling at a modest and appropriate speed may observe pedestrians on a footpath, but not note with any particularity a person standing on the kerb who stepped out possibly two paces, perhaps slipping, into the side of his vehicle. That does not deny the obligation of a driver reasonably to observe pedestrians on a footpath; rather it recognises that there is little a driver can do if a pedestrian takes two paces out from the footpath and collides with the driver's vehicle. I see no basis for disturbing the trial judge's finding rejecting a contention that the respondent was not keeping a proper look out. It is also clear from what I have said that breaking or swerving would not have avoided a collision where the pedestrian steps off the footpath into the side rather than the front of the vehicle. The trial judge rejected the contention that because the respondent was unaware where he was going and trying to find his way to Hurstville, that he was not keeping aproper look out, holding that, at its highest, all that could be said is that he was a little preoccupied as he approached the intersection and accident 2 UNREPORTED JUDGMENTS scene. That was a reference to the respondent's evidence that for a fraction of a second, he looked to the right to see a street sign. On appeal, it was contended the finding that the respondents was 'only a little preoccupied,' was a finding of momentary inattentiveness which should have resulted in a finding of failure to keep a proper look out. In my opinion, that submission is to be rejected. First, because the evidence related to some distance prior to the accident position. Second, because there is no prohibition on a driver looking otherwise than at pedestrians standing on the footpath. Third, because to glance to the right does not indicate either momentary inattentiveness or failure to keep a proper look out and fourth, because it was unrelated to the cause of the accident which was due to the appellant stepping out from the kerb into the side of the respondent's vehicle. In my opinion, there is no basis for disturbing the trial judge's decision and the appeal should be dismissed with costs. Clarke JA. I agree. Handley JA. I agree. Cole JA. The order of the Court is that the appeal is dismissed with costs. Orders accordingly. Counsel for the appellant: J P Gormly Solicitors for the appellant: Joseph G Capogreco and Assoc Counsel for the respondent: C E O'Connor QC/G Farmer Solicitors for the respondent: Windeyer Dibbs