New South Wales Court of Appeal CITATION : Viet Hong Lieng v Harold Delvers [2002] NSWCA 170 FILE NUMBER(S) : CA 40775 of 2001 HEARING DATE(S) : 04/06/02 JUDGMENT DATE : 4 June 2002 Viet Hong Lieng PARTIES : v Harold Delvers JUDGMENT OF : Meagher JA at 1; Foster AJA at 10; Ipp AJA at 11 LOWER COURT JURISDICTION : District Court LOWER COURT 2449 of 2000 FILE NUMBER(S) : LOWER COURT Nield DCJ JUDICIAL OFFICER : COUNSEL : Appellant: Mr B Hall QC & M Gillies Respondent: Mr R Bartlett SC & J Ryan SOLICITORS : Appellant: Konstan Lawyers Respondent: Abbout Tout CATCHWORDS : Motor Accidents Act - Derrick v Cheung (2001) 181 ALR 301 - liability - whether an inference in favour of negligence could be drawn - appeal dismissed with costs. CASES CITED: Derrick v Cheung (2001) 181 ALR 301 DECISION : Appeal dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA40775 of 2001 MEAGHER JA FOSTER AJA IPP AJA Tuesday, 4 June 2002 VIET HONG LIENG v HAROLD DELVERS Judgment 1 MEAGHER JA: The appeal is an appeal from his Honour Judge Neil from an accident which occurred in The Horsley Drive at Smithfield. The plaintiff, for whom one cannot help feeling extremely sorry, was driving in a westerly direction along what I shall call lane three. By that I mean The Horsley Drive was divided down the centre so there were two lanes of traffic on the northerly side and two lanes of traffic on the southerly side. The lane closest to the kerb on the northerly side I shall call lane one, the next lane lane two, lane three and lane four is the lane closest to the kerb side on the southern side. The plaintiff was driving along lane three, he intended to go into premises 723 The Horsley Drive which is on the northern side of the road. 2 One would normally expect him under those circumstances to go to the next break where he could safely do a u-turn and come back and then drive in an easterly direction drive into the premises at number 723, however, he did not do that. In the midst of fairly heavy traffic he went halfway down lane three and then stopped in the middle of lane three at a distance not very far from the premises which were his destination and waited there. In the meantime traffic going in the other direction, going in an easterly direction, was coming down lane two and a sedan in lane two stopped giving a gap between it and the car more easterly than it which would have, other things being equal, permitted the plaintiff to go through the gap and then across lane one onto the northern side of the road. 3 After stopping in lane three he went through the gap and then stopped in lane two. He looked to the left but could not see anything because there was a sedan in front of him which had stopped to permit him to make his manoeuvre and behind that were at least two large lorries and I assume, since it was heavy traffic, still further vehicles behind that. He inched very slowly with a view to getting into the northern driveway of the premises at number 723 but had only gone, it would seem on the evidence, a very short distance indeed before he was hit by a car, hit very severely in a way which caused very serious injuries. The point at issue is whether his Honour was right in finding that there was no evidence of negligence. The car which hit him of course was the defendant's car. 4 If one looks for authority I think the case which is closest to the present situation is the High Court decision in Derrick v Cheung (2001) 181 ALR 301. In that case the unanimous High Court reaffirmed that it is not enough in order to make a finding of negligence against a defendant to see that the accident in question was possible. One must go further than that, one must say not only would the danger is possible but also that it would be so reasonably foreseeable as to require a reasonably prudent person to carry out his/her activities in such a manner as to be able to avoid such danger. In that case the High Court approved the following statement by his Honour Mr Justice Davies: "The appellant's driving was appropriate in the circumstances. For the appellant to keep up with the general flow of traffic when the traffic was travelling at a modest speed well under the speed limit and where there was no particular danger observable was both a reasonable and a proper response to the traffic conditions on the day." 5 Those words, it seems to me almost word for word, could be applied to the defendant's behaviour in the present case. 6 It is alleged by Mr Hall QC, for the appellant/plaintiff, that the defendant, the present respondent, was guilty of negligence in two respects. First, that he was travelling at too high a speed, he was travelling at fifty kilometres an hour in a zone which permitted speeds up to sixty kilometres an hour. There are two answers I think to this proposition. One is an absence of any means of the term what is a proper speed?" Mr Hall, despite his ingenuity, was unable to suggest whether the speed should have been thirty, forty, twenty, ten or some other figure. 7 The second is that there cannot be such a duty in vacuo. There can only be a duty to travel at a very moderate speed if it is clear that such a moderate speed would have enabled the defendant to have behaved defensively when he saw that there was a gap. The unfortunate thing about the present case from the appellant's point of view is that there is no evidence that the defendant driving in an easterly direction down lane one could have ever observed that there was a gap or that the plaintiff/appellant had a motor car that was enclosed in that gap until the very last possible moment. The respondent must have had its vision very largely obscured by the two very large trucks to the left of the appellant in such a way that it was not readily visible to see that the appellant was inching into its incorrect lane. 8 Likewise the other ground of alleged negligence, namely not sounding the horn, admits of a similar answer. On the assumption that the horn was not sounded, and that is the plaintiff's evidence, it is an act which has no consequences and cannot be considered an act of negligence because the duty to sound a horn could not have arisen until the respondent actually saw the appellant. But since there is no evidence that the respondent saw the appellant or should have seen him until almost the moment of the collision there would have been no point in sounding the horn and the non-sounding of the horn could not have been causatively relevant. There was no evidence that at any time the respondent was in a position to have sounded his horn that would have given the appellant sufficient time and opportunity to make an appropriate response. 9 So for those reasons I have expressed somewhat summarily in my view the appeal must fail and there is no evidence that the appellant can point to establish negligence in the respondent. I would dismiss the appeal with costs. 10 FOSTER AJA: I agree. Mr Hall has said everything that could possibly be said in favour of the upholding of this appeal. In my view there is no evidence from which the inference could reasonably be drawn that the defendant should have anticipated that the plaintiff was about to make a right hand turn immediately in front of him, which was obviously what happened. No inference could be drawn that the defendant should have observed the gap in the lane two traffic or the presence of the plaintiff in that gap or that he was about to emerge from it into the defendant's lane of travel. There being no available inference in favour of negligence on the part of the defendant there was none to be strengthened by the failure of the defendant to give evidence. I agree with the orders proposed. 11 IPP AJA: I agree with the Presiding Judge and Mr Justice Foster. 12 MEAGHER JA: The order of the Court therefore is the appeal is dismissed with costs. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.