BELTRAN v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, HANDLEY JJA and SHEPPARD AJA 3 March 1998, 3 March 1998 [1998] NSWCA 35 NEGLIGENCE — running down case — no question of principle The appellant, a pedestrian, was struck by the respondent's insured vehicle while attempting to cross a busy four lane road away from any pedestrian crossing during the afternoon peak hour rush. He failed at first instance. On appeal: HELD: The appellant had failed to establish error. Handley JA This is an appeal by the plaintiff from a judgment for the defendant entered by Mr Justice McInerney in a running down case. The accident occurred at about 5.25pm on 23 April 1987 in Pyrmont Bridge Road at the intersection with Booth and Bennett Streets, near the former site of the Children's Hospital. The plaintiff had left the hospital, having visited a patient there, and had walked to the intersection. He crossed to a traffic island in the middle of Booth Street and then attempted to cross Pyrmont Bridge Road. There was no marked pedestrian crossing at that point, although the intersection was controlled by traffic lights. There was a marked pedestrian crossing on the western or far side of the intersection. The plaintiff was attempting to cross at the city side of the intersection. He reached the centre of the road where a car was stopped in the third and turning lane waiting to make a right-hand turn into Booth Street. He stopped in front of that car and then began to cross the traffic lanes carrying traffic from the city towards Parramatta Road. The defendant's insured car was approaching the intersection from the direction of the city and the Judge found that the traffic lights at the intersection were then green, in favour of the defendant's insured. This finding was not and could not be challenged. The Judge also found that the plaintiff ran as he attempted to cross the lanes carrying traffic from the city. The plaintiff successfully crossed the first lane, but collided with the defendant's insured car, which was travelling in the kerb side lane. The collision occurred in the front off-side of the defendant's car in the area of the mudguard, and the plaintiff was also struck by the off-side mirror. The defendant's driver was not travelling particularly fast, one estimate being between 35 and 45 kilometres an hour. Excessive speed was not relied on as a particular of negligence. The defendant's insured driver did not see the plaintiff until the last moment before the collision, but he had time, before the impact, to commence to swerve to his left. This evidence is consistent with the plaintiff's evidence that he moved off from a stationary position in front of the car waiting to make the right-hand turn when the defendant's insured car was only some 25 metres away. It would be wrong to place excessive reliance on the exactness of this estimate, but it indicates the plaintiffs recollection that the insured car was very close when he began his attempt to cross Pyrmont Bridge Road in front of it. 2 UNREPORTED JUDGMENTS Thus there were only a few seconds at the most between the time that the plaintiff began to run from his stationary position in front of the vehicle in the turning lane until the moment of impact. In these circumstances it is not surprising that the Judge found that there was no evidence as to when the driver should have been able to see the plaintiff and whether he would have been able to avoid the accident. In other words the Judge found that there was no evidence that the defendant's insured driver could and should have done anything in the time available which would have avoided the collision. Assuming in favour of the appellant that the defendant's insured driver was not keeping a proper look out in all respects - a matter on which it is not necessary to express a concluded view - the Judge found that the plaintiff had not established that the driver could and should have done something in the time available which would have or might have avoided this accident. I have not been persuaded that the trial Judge fell into any error and I would propose that the appeal should be dismissed with costs. Meagher JA I agree. Sheppard AJA I also agree. The only thing I would add is that the particular of negligence relied on is failure to keep a proper look out. His Honour came to the conclusion that there had been no breach of duty in that regard and I do not detect any error in that conclusion. As I say, I would also dismiss the appeal. Meagher JA The order of the Court therefore is the appeal is dismissed with costs. Appeal dismissed with costs. Counsel for the applicant: M J Neil QC and M T Vesper Solicitors for the applicant: G H Healey & Co, Hurstville Counsel for the opponent: P E Blacket Solicitors for the opponent: R J Walters