HUNTINGTON v SAUNDERS [2000] NSWSC 1155

New South Wales Supreme Court

CITATION : HUNTINGTON v SAUNDERS [2000] NSWSC 1155 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 13587/90 HEARING DATE(S) : 18.10.00, 19.10.00, 20.10.00, 23.10.00, 17.11.00 JUDGMENT DATE : 23 October 2000

PARTIES : Janice Huntington v Thomas Earl Saunders JUDGMENT OF : Adams J at 1

COUNSEL : Mr T D F Hughes (Plaintiff) Mr J Guihot (Defendant) SOLICITORS : G H Healey & Co (Plaintiff) Booth Mather Blackmore (Defendant) CATCHWORDS : Personal Injury CASES CITED : Trompp v Liddle 41 SR (NSW) 108 Byrnes v Snare (1986) 60 ALJR 507 DECISION : See paragraph 19

Revised THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADAMS J 23 October 2000 13587/90 JANICE HUNTINGTON v THOMAS EARL SAUNDERS JUDGMENT

1 HIS HONOUR: This action arises out of a motor vehicle accident which occurred on 5 May 1988 at about 6.20pm in Warren, a small country town in western New South Wales. The plaintiff is the widow of the driver of a Toyota Corolla which collided with a Holden panel van at a crossroads. 2 Action was commenced by the deceased. When he died of independent causes in 1997, the present plaintiff was substituted by order of the Court in 1999. 3 The panel van driven by the defendant had been at a petrol station about a hundred metres from the intersection. Amongst other things a fuse was replaced to permit the lights to operate. One of the issues in the case is whether the headlights of the Holden panel van were in fact lit as it moved out of the station and into the roadway. It was initially contended by the defendant that there was still some ambient light in addition to the street lighting. I am satisfied that the sun was well set at the time of the accident and that for all practical purposes it was dark. 4 The defendant in his evidence claimed that the headlights of the vehicle were on, relying in that regard on his having replaced the fuse and pulled out the light switch. I consider that this was an inadequate basis for his conclusion that the light were on. 5 A witness to the accident, Mr Gardner, whose work premises were near the intersection where the collision occurred said - "I was sitting there doing my paperwork and I heard tyres screeching and the motor noise of the V8 and I looked up and I thought I'll see who it is this time. A dark coloured van went past with no lights on and it was going quite fast". (15.27) Mr Gardner had made a statement to the police officer who attended at the scene and reported on the accident. That statement was taken the following day. It states - "When I heard this V8 car I looked up to see what it was. It was a panel van. [It] went past the front of the shop, coming from the BP Service Station, revving out excessively. He would have been doing at least 80-90 kph. He smacked straight into a Toyota at Burton Street very hard.... The panel van definitely didn't have its lights on. Even when I went over to the accident the Toyota still had his lights on but the van didn't".