KING v THE NOMINAL DEFENDANT [1998] NSWCA 123

KING v THE NOMINAL DEFENDANT SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

POWELL JA, COLE JA and STEIN JA 28 April 1998

[1998] NSWCA 123

On 14 October 1992, the appellant was injured when struck by an unidentified motor car whilst she was crossing the road. The trial judge held that, on the balance of probabilities, there was insufficient evidence to establish negligence on the part of the driver. Her Honour went on to say that, if she had found the driver negligent, she would have assessed the extent of contributory negligence on the part of the appellant at 60%.

On appeal:

(1) that contrary to Part 26 Rule 8(4) of the District Court Rules, the trial judge relied on further evidence adduced by the defendant after a Part 26 Rule 8 application had been made;

(2) that the trial judge's finding that there was contributory negligence of 60% on the part of the appellant was inconsistent with the finding of no negligence.

Held:

(1) The Respondent's application was for a non-suit pursuant to Part 26 Rule 7, District Court Rules.

(2) There was no inconsistency in the trial judge's findings.

Stein JA. This is an appeal from a verdict for the defendant (respondent) entered by Sidis DCJ. It arose out of injuries sustained by the appellant (plaintiff), Kelly Anne King, in an accident which occurred at about 8.30 am on 14 October 1992.

The plaintiff had dropped two of her children off at school at The Horsley Drive, Carramar. The Horsley Drive is an arterial road. It was the morning peak hour and traffic was heavy. The road has two traffic lanes in each direction. The plaintiff was intending to cross to the opposite side from the school to visit some shops. She crossed the first two lanes safely — there was no traffic coming in that direction. However, in the lane immediately adjacent to the centre lines there was traffic banked up to her left for some distance. The plaintiff decided to continue to cross in front of a large truck driven by a Mr Kevin Handford. This vehicle consisted of a prime mover and tanker. It was stationary.