TILOCCA v NSW INSURANCE MINISTERIAL CORPORATION [1996] NSWCA 532

TILOCCA v NSW INSURANCE MINISTERIAL CORPORATION

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA, HANDLEY JA and COLE JA 20 June 1996

[1996] NSWCA 532

MOTOR VEHICLE ACCIDENT — liability — excessive speed — miscarriage on cross-examination.

On 14 June 1987 the plaintiff, who was then eight years old, gave evidence that he approached a pedestrian crossing, saw a taxi slowing down, proceeded to cross, and was struck by the taxi. However, the trial judge preferred the evidence of the taxi driver and that of an independent witness who said that he saw the plaintiff run diagonally across an adjacent side street before running straight out onto the pedestrian crossing. The trial judge held that there was insufficient time for the driver to avoid the collision. The plaintiff also alleged that even though the defendant was within the speed limit he was travelling with excessive speed, but the trial judge found against this as there was no time to observe the plaintiff before the accident. The plaintiff appealed on the basis that there was excessive speed, and also on the grounds that the plaintiff had not been cross-examined as to running during the first day of the trial and that the independent witness's evidence on the second day should not have been accepted because of this. The plaintiff's counsel did not recall the plaintiff in reply.

HELD, dismissing the appeal: (1) No error was made by the trial judge on the question of speed; (2) It had been the plaintiff's decision not to further challenge the witness's evidence in reply; (3) The trial had not miscarried in any way requiring the intervention of the Court.

Handley JA. This is a plaintiff's appeal from judgment given for the defendant in a motor vehicle accident case heard by Smythe QC DCJ.

The accident occurred on Sunday 14 June 1987 in the afternoon. The plaintiff was then a child of eight years, eight months and he gave evidence that after returning his pushbike to his home in Balmain Road, he had walked up the footpath on the eastern side of Balmain Road, crossed over Hill Street and then proceeded to walk across a marked pedestrian crossing to return to the school on the opposite side of Balmain Road where he had previously been playing with his brothers.