Lin v Melia [1999] NSWCA 369

New South Wales Court of Appeal CITATION : Lin v Melia [1999] NSWCA 369 FILE NUMBER(S) : CA 40573/98 HEARING DATE(S) : 2 August 1999 JUDGMENT DATE : 7 October 1999

PARTIES : Xiao Liang LIN v Helen May MELIA JUDGMENT OF : Mason P at 1; Meagher JA at 2; Fitzgerald JA at 15

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 8746/97 LOWER COURT JUDICIAL OFFICER : Blanche DCJ

COUNSEL : Appellant: B. Hall QC/M. O'Brien Respondent: R. Bartlett SC/J. Meadley SOLICITORS : Appellant: Di Lizio & Associates Respondent: Abbott Tout CATCHWORDS : Negligence - survival action - motor vehicle accident - finding by trial judge appealed - failure to keep a proper lookout - careless and unexpected act of deceased. ACTS CITED : Compensation to Relatives Act, 1897 CASES CITED: Vespir v Thebridge (1991) 13 MVR 142. DECISION : Appeal dismissed with costs.

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA No. 40573 of 1998

MASON P MEAGHER JA FITZGERALD JA

Thursday, 7 October 1999.

Xiao Liang LIN v Helen May MELIA

NEGLIGENCE-DAMAGES- COMPENSATION TO RELATIVES ACT 1897

The respondent and the appellant's son were involved in a fatal motor vehicle accident. The appellant contended before the trial judge and on appeal that the respondent had travelled through a red light. The trial judge accepted the corroborated evidence of the respondent that she had not been speeding at the time of the accident and that the traffic lights were in fact green when she passed through them.

The appellant contests his Honour's finding on the basis there was some evidence to suggest the lights were either amber or red when the respondent drove through the intersection. In the alternative the appellant argues that even if the lights were green, the respondent failed to take reasonable care in keeping a proper lookout for side-entering traffic.