KING v FLAVIANO [1998] NSWCA 122

KING v FLAVIANO SUPREME COURT OF COURT NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, HANDLEY and COLE JJA

17 March 1998, 17 March 1998

[1998] NSWCA 122

NEGLIGENCE — RUNNING DOWN CASE — NO QUESTION OF PRINCIPLE

Handley JA This is an appeal by the defendant from a decision of Gibb ADCJ who determined issues of liability and damage arising out of a motor vehicle accident which occurred on 30 August 1991. The accident occurred on the Hume Highway on the northern outskirts of Mittagong. It involved the plaintiff, a truck driver in the Army Reserve, and a Pioneer passenger coach driven by the defendant.

The plaintiff was the driver of an Army truck which was one of a convoy taking schoolboys to a cadet camp near Moss Vale. The convoy had stopped on the northern outskirts of Mittagong and the vehicles had parked in a parking lane adjacent to the first lane for southbound traffic. The drivers left their vehicles and conferred with the officer-in-charge, Captain Blackman. A decision was then made to press on to the camp site.

The plaintiff returned to his truck, which was parked behind Capt Blackman's car and in front of the last truck in the convoy. It was about 8pm at the time. It was dark, the weather was cold, the traffic was heavy and the road surface was wet as it had only recently stopped raining. There was street lighting in the area which was not of high quality and it was within the 60 kilometre an hour restriction zone.

The plaintiff was injured when he was getting into his truck on the off-side. It appears that he had a foot, probably his right one, on the step of the truck and was getting into the cabin. He was therefore elevated above the road surface when he was struck by the rear vision mirror which stood out from the near-side of the passenger coach.

Counsel for the plaintiff acknowledged at the trial that at the time of the accident Mr Flaviano's body would have been projecting into the near-side traffic lane, along which the defendant was driving the passenger coach.