TRAN BY NEXT FRIEND TRAN v KIM [1996] NSWCA 537

TRAN BY NEXT FRIEND TRAN v KIM

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, SHELLER and COLE JJA

19 June 1996, 19 June 1996

[1996] NSWCA 537

NEGLIGENCE — no question of principle.

Cole JA The appellant, Tuan Tran, aged five years and nine months, was injured at approximately 3pm on 21 August 1989 when he was struck by the respondent's vehicle in Lakemba Road, Lakemba.

The appellant had walked with his brother, Van, aged about eleven years, along Collins Street to its intersection with Lakemba Road. Lakemba Road runs north to south.

The appellant and his brother intended to cross Lakemba Road from the east to the west to go to a shop. They paused on the eastern verge of the intersection. Parked adjacent to the eastern kerb near to the intersection was a van which prevented them seeing traffic coming from north travelling south.

The appellant, Tuan, became distracted by a dog chasing a cat and ceased holding his brother's hand. He did not notice that Van left the kerb and crossed Lakemba Road.

After ceasing to be distracted he looked to see his brother almost across Lakemba Road, stepped off the kerb, walked to the edge of the van and took one or two steps out into the roadway before he saw the respondent's car coming from his right. He then ran across in front of the car endeavouring to escape it but could not run fast enough.

The Chief Judge, Judge Staunton, accepted that the plaintiff looked out from around the edge of the van, decided to try to get across in front of the defendant's car, moved quickly when he was close to the defendant's car, and ran into the near side front corner of the car.

Judge Staunton accepted the respondent's evidence that he did not see the elder brother cross the road in circumstances where Van was well clear of the path of the defendant's vehicle at the relevant time.