KHAN v MOFFITT [1997] NSWCA 176

KHAN v MOFFITT

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, MEAGHER and COLE JJA 5 November 1997, 5 November 1997

[1997] NSWCA 176

Motor vehicle accident — credibility issue — unsuccessful challenge to adequacy of trial judge's reasons — no question of principle

Mason P This appeal challenges a verdict for the defendant found by his Honour Judge McLachlan. It concerns an accident that occurred in July 1993 when the appellant, the plaintiff belong, was struck as a pedestrian as he crossed Botany Road, Mascot. It is common ground that he was struck by a car being driven by its owner, the respondent.

The plaintiffs proceedings were a claim for damages for injury to his right foot and consequent orthopaedic disabilities affecting his right leg.

In an extempore judgment given by his Honour Judge McLachlan, the trial judge noted that he had two days to consider the claim. He did not relate all of the arguments put by counsel although he mentioned some of them. This was a classic case involving a single central credibility issue. The plaintiffs version of the accident was that he crossed at a pedestrian crossing, having left the roadway when the "Walk" sign was showing; and that he walked at a normal pace quickening the pace when he saw the pedestrian sign start to flash "Don't Walk". His evidence was that he was struck before he reached the other side by the defendant's vehicle which, on his evidence, must have come through a red light to have hit him.

The plaintiffs evidence at trial was that he was struck on the right foot, which was the foot that was on the roadway at the time of the accident. The plaintiff produced at trial his right shoe and pointed to its damaged condition as corroboration of the fact that it was the right foot that was injured. (The forensic purpose of this is fairly evident because the defendant, when he reported the accident to the police, had said that he hit the unidentified pedestrian in the left foot. The plaintiffs counsel tendered the P4 report prepared in the light of the defendant going to the police.)