Lam v Soutter

[1999] NSWCA 262

CITATION:	Lam v Soutter [1999] NSWCA 262
FILE NUMBER(S):	CA 40277/98
HEARING DATE(S):	21/07/99
JUDGMENT DATE:	21 July 1999
PARTIES :	Tung Quang Lam v Lawrence Soutter
JUDGMENT OF:	Giles JA at 16; Fitzgerald JA at 1; Cole AJA at 17

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	6480/97
LOWER COURT JUDICIAL OFFICER:	Tupman DCJ

COUNSEL:	M S Jacobs QC/B O'Sullivan (Appellant) J Poulos QC/S Torrington (Respondent)
SOLICITORS:	Bolzan & Dimitri (Appellant) Phillips Fox (Respondent)
CATCHWORDS:	Motor vehicle accident; contributory negligence; reasonable evasive action.
DECISION:	Appeal dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA40277/98

DC 6480/97

GILES JA
FITZGERALD JA
COLE AJA

Wednesday, 21 July 1999

Tung Quang LAM v Lawrence SOUTTER
JUDGMENT

1   FITZGERALD JA: This is an appeal from a judgment of the District Court on 9 April 1998 which dismissed the appellant's claim for damages for personal injuries which he sustained in a motor vehicle accident on 19 September 1989.

2   It is not in dispute that the appellant's negligence contributed to the accident. The only question which the appellant seeks to raise by proposed amendments to his Notice of Appeal is whether the appellant's negligence was the sole cause of the accident or whether the respondent also contributed to the accident by his negligence. All previous grounds of appeal were abandoned.

3   When leave to amend the Notice of Appeal was sought at the commencement of the hearing the Court reserved its decision and heard the appellant's argument.

4   The accident involved a head-on collision between motor vehicles driven by the parties. The appellant had travelled in a westerly direction along Newbridge Road, Moorebank and turned north, that is to the right, into Epsom Road. He then travelled along Epsom Road towards its intersection with Whelan Avenue.

5   The respondent drove south along Epsom Road intending to cross its intersection with Whelan Avenue and then turn in an easterly direction, that is to the left into Bond Street.

6   The appellant was travelling at about 60 kilometres per hour and the respondent somewhere between 40 and 60 kilometres per hour.

7   The collision occurred on or near the intersection of Epsom Road and Whelan Avenue.

8   Prior to the collision, the appellant's vehicle moved on to the respondent's side of Epsom Road. The respondent sought to avoid a collision by suddenly moving on to the appellant's side of that road and attempting to turn right into Whelan Avenue. The appellant then moved back to his correct side of the road where the collision occurred.

9   The respondent was negligent even if he could not have avoided the collision if he failed to take some reasonable action which would probably have lessened the injuries to the appellant. What the respondent could or should have done obviously depends upon what, if any, opportunities were open to him.

10   Stripped to its essentials, the question whether the respondent was negligent depends upon whether or not he failed to take evasive action which a reasonable person would have taken.

11   One submission by the appellant was that the respondent should have turned right into Whelan Avenue but he could not do so until he arrived at that location which was immediately prior to the collision when he did try to escape by that route. Plainly, there was no negligence involved in his failure to turn earlier.

12   On his own evidence, until he swerved on to the appellant's side of Epsom Road the respondent did no more than take his foot from the accelerator. The appellant's other submission was that a reasonable person would have pulled over and slowed down.

13   It was also submitted that the trial judge was incorrect in finding that, had the respondent simply stopped, there is nothing in the evidence to indicate that the collision would not have occurred.

14   However, these matters were not put to the respondent below and there is no evidentiary foundation for a conclusion that the respondent was negligent in failing to stop or slow down rather than to try to avoid the collision by his turn towards Whelan Avenue.

15   In the circumstances, I am satisfied that even were leave to amend the Notice of Appeal given the appeal would necessarily fail. I would accordingly dismiss the appeal with costs.

16   GILES JA: I agree.
17   COLE AJA: I also agree.
18   GILES JA: The order of the Court will therefore be that the appeal is dismissed with costs.