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. Judge Staunton also accepted that owing to the size of Tuan he could not be seen by the respondent as he was hidden by the van, but that he ran out quickly in front of the respondent's vehicle giving the respondent "no opportunity to avoid him." In those circumstances Judge Staunton found no negligence on the part of the respondent, he travelling at a proper speed of sixty kilometres per hour in the circumstances and keeping a proper look out. Grounds one and two argued on appeal contended that the trial judge failed to take account of the distance travelled by the appellant from the kerb to the point of impact, and further that the trial judge wrongly rejected the appellant's evidence that he took a number of steps to clear the van before he began to run. The appellant's evidence was that he walked from the kerb to the edge of the van and then walked one or two steps being "about 60 centimetres" before he started to run. 2 UNREPORTED JUDGMENTS The trial judge recounted the substance of that evidence. Clearly it was taken into account. Those grounds fail. The third ground argued was that as the respondent was approaching a church hall at around 3pm he should have been prepared to respond to a child unexpectedly running on to the road and drive accordingly, but he had not. The respondent gave evidence that he was aware of the existence of the church hall and that there were all sorts of activities associated with the church, however there was no evidence of any activities or knowledge of activities at 3pm on a Monday afternoon. The church hall in truth played no part in this accident. This ground fails. The fourth ground argued was that his Honour should have accepted that two circumstances, namely the presence of the brother Van on the road and the closeness of the church hall should have alerted the driver to the possible presence of children. Van's evidence was that he had reached or almost reached the western kerb by the time of the accident. The trial judge noted that evidence. That evidence gave no cause to suggest the presence of other children and Van was well clear of the path of the vehicle. The circumstance of the existence of one child crossing a road coupled with the presence of a church hall give no cause for a reasonable driver to drive otherwise than the manner in which the respondent was driving. Ground five was that his Honour's finding that the appellant probably ran into the near side corner of the vehicle was wrong, however that finding was supported by the evidence. Ground six contended that the trial judge should have found that the respondent was not keeping a proper look out. The respondent did not see the elder brother, but this was found to be because he was well clear of the path of the vehicle. The respondent was looking ahead but could not see the appellant because of his size and because he was hidden by the van until he stepped out and ran to the front of the vehicle. Further, the accident was due in this latter circumstance, not to any failure to keep a proper look out. In my opinion the appeal should be dismissed with costs. Clarke JA I agree with Mr Justice Cole. I am not persuaded that there has been demonstrated any error in the judgment under appeal. Sheller JA I also agree with what Mr Justice Cole has said and with what the presiding judge has said. The order of the Court will be that the appeal is dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: P Menzies QC and WR Ward Solicitors for the appellant: Gajic and Co Counsel for the respondent: JD Hislop QC and AJ Black Solicitors for the respondent: Abbott Tout