ARNOLD (BY HER FRIEND ARNOLD) v HOLDEN [1998] NSWCA 17

ARNOLD (BY HER FRIEND ARNOLD) v HOLDEN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, HANDLEY JA and SHEPPARD AJA 22 October 1998, 22 October 1998

[1998] NSWCA 17

Negligence — standard of care — girl on bike struck by van — evasive action would not have avoided the accident — driver of van not negligent

Mason P This is a sad case involving a fourteen-year old girl who suffered injuries when she was struck by a car. She and a companion were proceeding north along Mt Ettalong Road, just to the left of the carriageway. Two of her companions had crossed over to the right hand side of the road, also proceeding north, a little while earlier. In a careful judgment which reviews the evidence and contains findings of primary fact and ultimate conclusions, his Honour Judge Sinclair QC found that he was not satisfied that the defendant, the respondent here, was negligent. I would be content to adopt the reasoning of his Honour in its entirety because I find no fault either in the factual assessment or the legal principles stated, nor the conclusions to which his Honour came. However, out of deference to the argument put to us and the particular facts of the case, I should address some of the points that have been made.

The case proceeded essentially upon the basis of the ultimately unchallenged evidence of the respondent and an independent witness, Mrs Hull, who was driving a car ahead of the respondent's van. The trial judge found that each of those witnesses impressed him as being truthful, sensible, and reliable witnesses, and the findings of fact he made were consistent with their evidence. His Honour accepted the evidence of Mrs Hull that the two girls on their bicycles on the left hand side of the road, one of which was the appellant, were veering on and off the road to some extent and calling to the girls on the other side of the roadway. However their conduct was not sufficient to cause Mrs Hull to slow down or veer towards the centre of the road as she passed them. Nevertheless, it was sufficient to cause her to look in her rear vision mirror as the defendant, the respondent here, was going past them. This is why her evidence, coming from an independent witness who actually had her attention alerted and looked at what happened, is of critical importance. Based on her evidence his Honour found that, without warning, the appellant turned her bicycle to the right and commenced to ride across the roadway, straight into the path of the respondent's vehicle, and that at that time he had no chance of avoiding the collision.