Derrick v Cheung - [1999] NSWCA 341

CITATION: Derrick v Cheung [1999] NSWCA 341

FILE NUMBER(S): CA 40614/98

HEARING DATE(S): 20/09/99

JUDGMENT DATE:
11 October 1999

PARTIES :

Rosalie Derrick v Wah Yi Rosanni Cheung (By her Next Friend Xiu Rui Hong)

JUDGMENT OF: Stein JA at 1; Fitzgerald JA at 1; Davies AJA at 11

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 40614/98

LOWER COURT JUDICIAL OFFICER: Chesterman ADCJ

COUNSEL: C G Gee QC/M Scheib (Appellant)
S L Walmsley/P C See (Respondent)

SOLICITORS: Henry Davis York (Appellant)
Beston & Co (Respondent)

CATCHWORDS: Torts; negligence; motor vehicle accident; injury to pedestrian child; reasonable response to risk attendant upon driving; opportunity to avoid collision; consideration of Stocks v Baldwin 24 MVR 416; by majority: not a case for appellate intervention.

DECISION: Appeal dismissed with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA40614/98
DC 7156/97

STEIN JA
FITZGERALD JA
DAVIES AJA
Monday, 11 October 1999

Rosalie DERRICK v Wah Rosannie CHEUNG (By her Next Friend Xie Rui HONG)
JUDGMENT

1 STEIN and FITZGERALD JJA: At about 9.00am on Saturday 17 December 1994, the respondent, then an infant aged about 21 months, ran out of a yard onto the footpath and then between parked cars onto the roadway of Victoria Avenue, Chatswood. The road was busy at the time. The appellant had no opportunity to see the respondent until she appeared on the roadway in front of the appellant’s car. The designated speed limit was 60 kilometres per hour and the appellant’s vehicle was travelling at 45-50 kilometres per hour, which was consistent with other traffic movement in the locality. The appellant braked, swerved and skidded, but the respondent was struck by the near-side headlight of the appellant’s vehicle, knocked to the roadway and seriously injured. 2 The careful judgment of the trial judge is not susceptible of any criticism unless it is of his Honour’s ultimate conclusion that the appellant was negligent. 3 That conclusion gave literal effect to statements in Stocks v Baldwin, (1996) 24 MVR 416. particularly by Mahoney P, which have been applied by this Court on numerous occasions. While each case falls to be decided on its own facts, the judgment of the President in Stocks v Baldwin 24 MVR 416. is persuasive, as is the reasoning of Simos AJA. 4 We will record only two passages from Mahoney P’s judgment. His Honour said:

“I have stressed that the reasonable person would accept that it is not the duty of a driver so to drive that there is no foreseeable risk of injury to others. To think otherwise would be to ignore the realities of city life. But it not to be taken from what I have said that risks may be ignored. In the ‘balancing’ process to which Mason J referred [ Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 - 48] at least four things are to be borne in mind: the extent of the damage that may be done by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Derrick v Cheung

Details

AGLC: Derrick v Cheung [1999] NSWCA 341
Case: [1999] NSWCA 341
Decision Date: 11 October 1999

CaseChat Overview and Summary

The appeal in *Derrick v Cheung* concerned a motor vehicle accident in which a child pedestrian was injured. The parties involved were the appellant (presumably the driver) and the respondent (the injured child, represented by a guardian). The dispute centred on whether the driver had acted negligently in causing the collision.

The primary legal issue before the Court of Appeal was whether the trial judge had erred in finding the driver negligent. Specifically, the court had to consider whether the driver had taken reasonable steps to avoid the collision, given the circumstances and the risk attendant upon driving. The court also had to determine if the trial judge's assessment of the driver's opportunity to avoid the collision was correct.

The majority of the Court of Appeal found no grounds for appellate intervention. They considered the principles of negligence in motor vehicle accidents, including the duty of care owed by drivers to pedestrians and the assessment of reasonable conduct in response to foreseeable risks. The court implicitly applied the established legal principles for determining negligence, focusing on the driver's actions and their causal connection to the child's injuries. The majority did not consider the case to be one where the appellate court should interfere with the findings of fact made at trial.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Derrick v Cheung [1999] NSWCA 341
FILE NUMBER(S):	CA 40614/98
HEARING DATE(S):	20/09/99
JUDGMENT DATE:	11 October 1999
PARTIES :	Rosalie Derrick v Wah Yi Rosanni Cheung (By her Next Friend Xiu Rui Hong)
JUDGMENT OF:	Stein JA at 1; Fitzgerald JA at 1; Davies AJA at 11

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	40614/98
LOWER COURT JUDICIAL OFFICER:	Chesterman ADCJ

COUNSEL:	C G Gee QC/M Scheib (Appellant) S L Walmsley/P C See (Respondent)
SOLICITORS:	Henry Davis York (Appellant) Beston & Co (Respondent)
CATCHWORDS:	Torts; negligence; motor vehicle accident; injury to pedestrian child; reasonable response to risk attendant upon driving; opportunity to avoid collision; consideration of Stocks v Baldwin 24 MVR 416; by majority: not a case for appellate intervention.
DECISION:	Appeal dismissed with costs.