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. The plaintiff crossed in front of Mr Handford's truck. As she did so, Mr Handford looked in his left wing mirror in which he had a view of the kerb-side lane which theplaintiff was about to cross. When he first looked, he saw a car approaching which he estimated to be about 25m to the rear of his trailer. When the plaintiff was directly in front of him, Mr Handford again looked in his wing mirror and saw that the motor vehicle was still approaching. When he looked back to the front the plaintiff was nearly at the edge of his truck. He did not see her look to the left before continuing to cross into the kerbside lane. The plaintiff had stepped 2 to 3 feet into the adjoining lane, according to Mr Handford, when she was stuck by the approaching vehicle. The plaintiff was thrown forward by the impact and landed at the edge of the footpath on the kerb. Mr Handford did not see any brake lights on the motor vehicle. That vehicle stopped 2 to 3m behind the plaintiffs final resting position. 2 UNREPORTED JUDGMENTS Although the driver of the vehicle stopped, it appears that he then left the scene and has not been located. Hence the proceedings have been brought against The Nominal Defendant. Before coming to the central issue in the appeal — was the driver of the unidentified motor vehicle negligent by driving at a speed which was excessive in the circumstances — it is convenient to deal with two grounds of appeal which I think are untenable, although one was abandoned by counsel for the appellant in his opening. Nonetheless, I think it is desirable that I say a few words about it. In the written submission filed on behalf of the appellant it was submitted that, by reason of the refusal of the trial judge to accede to an application made by counsel for the respondent at the close of the plaintiff's case, the respondent was not entitled to adduce any evidence. Accordingly, Mr Handford's evidence, called by the respondent, should be disregarded. This issue boils down to whether the defendant applied for the plaintiff to be nonsuited under Part 26, Rule 7 of the District Court Rules or applied for a verdict by direction under Part 26, Rule 8. If it was a non-suit application then under Rule 7(6), once the application was refused, the defendant was entitled to call evidence. Page 74 of the Appeal Book did not transcribe the application that was made by the defendant's counsel at the close of the appellant's case. This has now beensupplemented. The transcript makes it clear that application was made for a non-suit under Rule 7(3). The plaintiff's counsel indicated to Her Honour that he wished to argue the application. Sidis DCJ refused the application. The defendant then called Mr Handford, to which no objection was made. That it was a non-suit application is confirmed by the exchange between Her Honour and Counsel for the defendant at pages 97 to 98 of the Appeal Book. The appellant further submits that the judgment is internally inconsistent in that after finding that there was no negligence by the driver of the unidentified vehicle, Her Honour found that the appellant's negligence contributed to the accident to the extent of 60%. It is submitted that Her Honour misapplied the correct approach to determining whether there was primary negligence established against the defendant by her erroneous view that the appellant bore the largest share of responsibility for the accident (para 19 — written submissions). This is plainly wrong. Sidis DCJ found that there was no negligence established against the driver of the unidentified motor vehicle (AB 180 F — I). She then proceeded to consider the remaining issues — contributory negligence and damages (AB 180 J — S) should be overturned on appeal. This she made abundantly clear and it was an entirely proper and understandable course for her to follow. Accordingly, I return to the substantial ground of appeal argued in the written submissions. It is the submission of counsel for the appellant that Her Honour should have found that the defendant was negligent in driving at a speed which was excessive in the circumstances. The difficulty for the appellant is that there is little evidence of excessive speed and such evidence as there was, is equivocal. Her Honour used the word "ambivalent" (AB 177 R). Her Honour accepted that there were circumstances which called for moderation of speed — the presence of the school, the time of day and the heavy traffic. There were some notes in the ambulance officer's report. Her Honour was, URJ KING v THE NOMINAL DEFENDANT (Powell JA) 3 however, entitled to conclude that it was not possible to determine the speed of the unidentified vehicle from the document. The appellant relied upon the evidence of Mr Handford. Indeed, his testimony was the only direct evidence of observations of the unidentified motor vehicle. In cross-examination at AB 85 N he answered a question directed to how fast the other vehicle was travelling. He said: A. POP Well I can't really say how fast it was going, it's hard — if I was stopped, I considered for the situation he was travelling too fast, but he might have only been doing the speed limit, but being a congested school area, he was — well he — he was he was approaching quickly, but I mean that's more than likely because everyone was stopped, so any speed would look quick. Counsel for the appellant submits that Mr Handford put the speed of the vehicle at the speed limit (60 kph), although he did not say so directly. However, her Honour found that when Mr Handford was asked to assess the speed of the other vehicle, he refused to do so (AB 178 J). After the somewhat ambiguous answer, which I have just quoted, the issue of speed was returned to by the questioner on a number of occasions. The first example is AB 89 N to P: How fast do you say the vehicle was travelling? I don't know. At the point of impact? I don't know. The same question was repeated and elicited the same answer at AB 92 W — X. The issue was returned to in re-examination and Mr Handford again reiterated that he did not know how fast the vehicle was going. It seems to me that her Honour was entitled not to read too much into the evidence of Mr Handford on the issue of speed of the unidentified vehicle. The same may be said in relation to the evidence of Mr Handford not seeing any brakes applied before the impact. What is apparent is that the opportunity for the driver of the unidentified motor vehicle to see the plaintiff was limited. His vision was limited to the plaintiff emerging from in front of the truck for one or two strides into the kerbside lane. He would have had to be travelling very slowly to be able to react in time to bring his vehicle to a halt without striking the plaintiff. In my opinion, the trial judge was not in error in finding that the plaintiff had failed to establish negligence on the part of the unidentified driver. I would accordingly propose that the appeal be dismissed with costs. Powell JA. I agree. Cole JA. I also agree. Powell JA. The orders of the Court will thus be that which has been proposed by Stein JA. Dismissed with costs Counsel for the appellant: HN Kelly 4 UNREPORTED JUDGMENTS Solicitors for the appellant: Firths Counsel for the respondent: J Hislop QC/DJ Russell Solicitors for the respondent: GJO Australia