Antypas v McKeon

[2001] NSWCA 417

CITATION:	Antypas v McKeon [2001] NSWCA 417
FILE NUMBER(S):	CA 40275/01
HEARING DATE(S):	19/11/01
JUDGMENT DATE:	28 November 2001
PARTIES :	Catherine Antypas by her Tutor Farida Antypas v Linda Kay McKeon
JUDGMENT OF:	Hodgson JA at 1; Ipp AJA at 2; Rolfe AJA at 51

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 8579/99
LOWER COURT JUDICIAL OFFICER :	Cooper DCJ

COUNSEL:	K Rewell SC/A Beardow (Appellant) R F Sutherland SC/L Morgan (Respondent)
SOLICITORS:	Keddies (Appellant) Moray & Agnew (Respondent)
CATCHWORDS:	NEGLIGENCE - motor accident - children - onus of proof. ND
DECISION:	(1) Appeal dismissed (2) Appellant to pay the Respondent's costs of the appeal.

CA 40275/01
DC 8579/99
HODGSON JA
IPP AJA
ROLFE AJA


Wednesday, 28 November 2001

CATHERINE ANTYPAS BY HER TUTOR FARIDA ANTYPAS v

LINDA KAY McKEON

Judgment

1 HODGSON JA: I agree with Ipp AJA.

2 IPP AJA: On 18 November 1996, the appellant (Catherine Antypas) was struck by a car in Sutherland Street, St Peters. She was then aged 6 years 8 months. The respondent was the driver of the car. In consequence of the accident the appellant suffered very serious injuries.

3 The appellant (by her tutor), brought proceedings against the respondent to recover the damages she suffered. By agreement between the parties the issue of liability, alone, was first determined. Cooper DCJ held that negligence on the part of the respondent had not been established and awarded a verdict and judgment for the respondent. The appellant now appeals against the orders so made.

4 A difficulty that faced the trial judge and that faces this court is that the evidence as to relevant features of the scene of the accident was inadequate to a serious degree. I will come to that but, at this stage, I shall set out the relevant facts and circumstances relating to the accident that were established by the evidence.

5 A plan of the area was tendered on behalf of the appellant through Mr Aiello, a witness at the trial. Mr Aiello did not draw the plan. He did, however, indicate thereon the positions of his vehicle (which was parked in Sutherland Street at the time of the accident), where the respondent’s vehicle came to a stop, and where he said the appellant was lying on the road after the accident. The plan was not drawn to scale. It had been prepared by a person unknown and admitted after objection by the respondent. The plan lacked measurements of several important features and has to be regarded as being of doubtful reliability. It does, however, give a general indication of the accident scene.

6 Sutherland Street runs from east to west. At the point where the impact occurred, Sutherland Street was about 12 metres wide “and open and straight”. There was room for parked vehicles on either side of the roadway as well as for two lanes of traffic moving east and west. On each side of the roadway there was a…