EL SLEIMAN v HOLT and ANOR [1998] NSWCA 74

EL SLEIMAN v HOLT

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, STEIN JA and SHEPPARD AJA 23 June 1998, 22 September 1998 [1998] NSWCA 74

NEGLIGENCE — Motor vehicle accident — Appellant, the unsuccessful plaintiff at first instance, knocked down by vehicle driven by first respondent — Appellant four years of age — Struck down in conditions of darkness in quiet suburban street — Street not well lit — Appellant ran across road from behind parked station wagon — Appellant had been told to remain with father who was removing articles from back of station wagon — Appellant ran across road to be with his mother who, with two other children, had crossed the road shortly beforehand — Observations on first respondent's obligation to keep a proper look out, to have regard to likely presence of other pedestrians including children who might suddenly cross road, not to accelerate until clear no likelihood of danger — Whether first respondent should have had her lights on high beam.

Mason P I agree with Sheppard AJA.

Stein JA I agree with the reasons of Sheppard AJA set out in his judgment and with the orders which he proposes. It is indeed a tragic case and one in which the natural sympathies of the court are with the appellant and his family. The question for the court however, is whether the trial judge was wrong in not finding that the respondent was negligent. As Sheppard AJA makes plain, he was not in error.

Sheppard AJA This appeal is from a judgment of Newman J sitting in the Common Law Division given on 11 December 1995 in a case involving a motor accident in which the appellant suffered very serious injuries. The judgment was for the first respondent, the defendant below. His Honour also found for the cross-defendants, the second respondents here, in third party proceedings brought by the first respondent against the second respondents who are the parents of the appellant.