KEAM & ANOR v CHIOMEY bnf MERCER & ANOR [2002] NSWCA 280

New South Wales Court of Appeal

CITATION : KEAM & ANOR v CHIOMEY bnf MERCER & ANOR [2002] NSWCA 280 FILE NUMBER(S) : CA 40098/02 HEARING DATE(S) : 1 August 2002 JUDGMENT DATE : 28 August 2002

Stephen Keam and Balesford Pty Ltd t/as Richmond Sand Gravel & Landscaping - Appellants PARTIES : Jacques Napoleon Chiomey by his next friend Nicola Mercer - First Respondent Lismore City Council - Second Respondent JUDGMENT OF : Sheller JA at 1; Beazley JA at 35; Hodgson JA at 36

LOWER COURT JURISDICTION : District Court LOWER COURT 35/00 (Lismore) FILE NUMBER(S) : LOWER COURT Sidis DCJ JUDICIAL OFFICER :

H G Shore - Appellants COUNSEL : P W Neil SC/T J J Willis - First Respondent H J Marshall - Second Respondent Vandervords - Appellants SOLICITORS : Hosie & Partners - First Respsondent Crameri Lawyers - Second Respondent CATCHWORDS : NEGLIGENCE - child struck on pedestrian crossing - conflict of evidence - failure of trial Judge to make findings - insufficient reasons - acceptance of one account of plaintiff over an inconsistent account LEGISLATION CITED : N/A CASES CITED: N/A DECISION : Appeal dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40098/02 DC 35/00 (Lismore)

SHELLER JA BEAZLEY JA HODGSON JA

KEAM & ANOR v CHIOMEY bnf MERCER & ANOR The appellants appeal from a decision of 26 September 2001 by Judge Sidis. The first appellant was the driver, and the second appellant the owner, of a truck which struck and injured the plaintiff while he was riding his bicycle on a pedestrian crossing at the intersection of two streets. The appellants were sued in negligence. The principal issue between the parties was - whether shortly before the accident the plaintiff was standing either close to or on the intersection in a position clearly visible to the first appellant as he came to make a right-hand turn after travelling through the crossing and yet the first appellant failed to see him; or - whether the plaintiff had ridden his bicycle at some speed and from a position where he could not have been seen by the first appellant, or could not have been seen until it was too late to avoid a collision, on to the pedestrian crossing and to the point of impact. The trial Judge accepted the first scenario as an accurate description of how the accident occurred and the first appellant was found negligent. No order for contributory negligence was made against the plaintiff.