Barbosa v Di Meglio [1999] NSWCA 307

New South Wales Court of Appeal CITATION : Barbosa v Di Meglio [1999] NSWCA 307 FILE NUMBER(S) : CA 40291/98 HEARING DATE(S) : 26 February 1999 JUDGMENT DATE : 31 August 1999

Antonio Barbosa by his next friend The Protective Commissioner PARTIES : v Paul Pasquale Di Meglio JUDGMENT OF : Mason P at 1; Priestley JA at 17; Meagher JA at 88

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 6291/97 LOWER COURT JUDICIAL OFFICER : Sinclair DCJ

COUNSEL : A: AS Morrison SC; GJ Tabuteau R: BMJ Toomey QC; IJ McGillicuddy SOLICITORS : A: JS Pinto & Co, Petersham R: Dunhill Madden Butler, Sydney CATCHWORDS : BIAS - Application to disqualify for bias - Reasonable apprehension of pre-judgment and bias; EVIDENCE - Expert - Argumentative and conclusory material in report CASES CITED: Webb v The Queen; Hay v The Queen (1994) 181 CLR 41 DECISION : Appeal dismissed with costs

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40291/98 DC 6291/97 CLD 20959/94 MASON P PRIESTLEY JA MEAGHER JA Tuesday, 31 August 1999

Antonio BARBOSA v Paul Pasquale DI MEGLIO HEADNOTE Two trucks were driving toward the appellant when he attempted to run across the road. While the truck in lane two, driven by Mr Murphy, braked in order not to hit him, this blocked the view of the truck in lane three who could neither see him coming nor brake quickly enough to avoid him. The appellant's counsel at trial attempted to show that although the appellant was obviously careless of his own safety in trying to cross Botany Road in the way and in the place that he did, nevertheless the respondent had negligently and materially contributed to the happening of the accident. It was submitted that the sudden slowing down of Mr Murphy's truck should have alerted the respondent to the likelihood that something unexpected might happen.