Lin v Melia

[1999] NSWCA 369

CITATION:	Lin v Melia [1999] NSWCA 369
FILE NUMBER(S):	CA 40573/98
HEARING DATE(S):	2 August 1999
JUDGMENT DATE:	7 October 1999
PARTIES :	Xiao Liang LIN v Helen May MELIA
JUDGMENT OF:	Mason P at 1; Meagher JA at 2; Fitzgerald JA at 15

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	8746/97
LOWER COURT JUDICIAL OFFICER:	Blanche DCJ

COUNSEL:	Appellant: B. Hall QC/M. O'Brien Respondent: R. Bartlett SC/J. Meadley
SOLICITORS:	Appellant: Di Lizio & Associates Respondent: Abbott Tout
CATCHWORDS:	Negligence - survival action - motor vehicle accident - finding by trial judge appealed - failure to keep a proper lookout - careless and unexpected act of deceased.
ACTS CITED:	Compensation to Relatives Act, 1897
CASES CITED:	Vespir v Thebridge (1991) 13 MVR 142.
DECISION:	Appeal dismissed with costs.

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA No. 40573 of 1998

MASON P
MEAGHER JA
FITZGERALD JA

Thursday, 7 October 1999.

Xiao Liang LIN v Helen May MELIA

NEGLIGENCE-DAMAGES- COMPENSATION TO RELATIVES ACT 1897

The respondent and the appellant’s son were involved in a fatal motor vehicle accident. The appellant contended before the trial judge and on appeal that the respondent had travelled through a red light. The trial judge accepted the corroborated evidence of the respondent that she had not been speeding at the time of the accident and that the traffic lights were in fact green when she passed through them.

The appellant contests his Honour’s finding on the basis there was some evidence to suggest the lights were either amber or red when the respondent drove through the intersection. In the alternative the appellant argues that even if the lights were green, the respondent failed to take reasonable care in keeping a proper lookout for side-entering traffic.

Held: The onus on the appellant to dislodge his Honour’s finding is high, and in these circumstances, his Honour’s finding has not been shown to be incorrect. Further, the deceased’s actions - wearing dark clothes and a black hat and riding an unlit bicycle at night - may be a careless and unexpected act on the part of the deceased: Vespir v Thebridge (1991) 13MVR 142 and counterbalance the appellant’s argument that the respondent failed to keep a proper lookout.

Orders

1. Appeal dismissed with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA: 40573/98

MASON P
MEAGHER JA
FITZGERALD JA

Thursday 7 October 1999

Xiao Liang LIN v Helen May MELIA

JUDGMENT

1   MASON P: I agree with Meagher JA. 2   MEAGHER JA: This is an appeal by an unsuccessful plaintiff, Mr Xiao Liang Lin, from a verdict given by Blanche J for the defendant Miss Melia. Mr Xiao Liang Lin is suing under Lord Campbell’s Act.
3   Miss Melia was driving her motor car westerly along Gardeners Road on 13 August 1994, after having played a game of bingo at Maroubra. Gardeners Road has 6 lanes of traffic, three of them going east and three of them going west. She was driving in the middle lane of the westerly trio. Between 10.00pm and 10.20pm she was involved in an unfortunate accident which resulted in the death of a young man who was Mr Xiao Liang Lin’s son.
4   On approaching the intersection of Tunstall Avenue to her right, she went through traffic lights, travelling at 60-62 kph in a 70 kph zone. The lights, she said,were green. About one and a half car lengths past a pedestrian crossing which ran across the road next to the lights, out of the corner of her eye she saw an orange flash which then hit the front off side of her car. She put her foot on the brake and next minute the windscreen smashed. She had collided with the young man and his bicycle.
5   That is her version and Blanche J believed her. Nobody quite knows where the young man came from, but it would seem probable that he was coming home after a day at the University of N.S.W.
6   The plaintiff’s principal case both at first instance and before the Court of Appeal was that Miss Melia drove through a red light. Having regard to his Honour’s previous finding that it was green, it would require a powerful case indeed to find that it was red.
7   A policeman who attended at the scene of the accident gave evidence that on the physical evidence (by which I assume he was referring to the location of the bicycle, the clothes of the young man etc.) it was possible that the lights “might have been green” when Miss Melia passed through them, although he proffered a view he had come to after consultation with persons unknown that they were probably red. (How a view so expressed could be admitted into evidence I have no idea).
8   A Mr. Marcelino was also driving west along Gardener’s Road at the time. He gave evidence for the plaintiff. He was travelling behind Miss Melia’s car, but in the median lane. He saw a thick object going over the bonnet of Miss Melia’s car. He stated that at the time of the impact the lights were red, although in a previous statement to an investigator he had said they were either amber or red. That statement was made a matter of months after the accident. There is no evidence that he saw the young man and his bicycle approaching Miss Melia’s car, or that he observed that the lights were red when Miss Melia drove through the pedestrian crossing.
9   A Mr Schembri also gave evidence. He said he was travelling in an easterly direction along Gardener’s Road, and as he approached the pedestrian crossing the lights were amber and then went red. There were two cars ahead of him stopping at the red lights. He then saw what he believed to be a bicycle crossing the road. By inference , this was before the accident. It was going across the road a bit faster than walking pace. He noticed the reflection of the bicycle wheels. He did not see any accident. His description of the bicycle was widely at variance with an accurate description of the young man’s bike; he said it was white, when it was orange; he said the young man’s helmet was yellow, when in fact it was black; he said there were reflectors on the wheels, whereas the young man’s bike was innocent of reflectors.
10   His Honour plainly (and correctly) did not consider that Mr Marcelino’s evidence established that the lights were red when Miss Melia drove through the crossing, and he thought Mr Schembri must have been describing a different bicycle to the one the young man was riding. It cannot be said that either finding was manifestly untenable.
11   That, I think, disposes of the appellant’s principal argument. However, a secondary argument was much stronger : viz that even if Miss Melia did go through a green light, she could not have been keeping a proper lookout. She said she was looking straight ahead, but it is clear enough law that a person in her position must take reasonable care to look sideways from time to time in case someone, perhaps heedless of his own safety emerges in front of her. But, in my view, counsel for the respondent was correct in submitting that there was no evidence to ground a finding that it was more probable than not that her failure to keep a proper look-out, if such failure existed, was causative of the accident.
12   In considering this aspect of the case in proper perspective, it is necessary to remember that the fact that the young man was wearing dark clothes and a black hat, and was riding an unlit bicycle, I find the following submission of the respondents unanswerable.

“It is equally consistent on the established facts that the sole cause of the accident was a careless and unexpected act on the part of the deceased, see Vespir v Thebridge (1991) 13 MVR 142 . Even if it is available to draw the inference that the respondent ought to have seen the deceased sometime shortly prior to when she did, in the absence of evidence to indicate where the bike came from, its speed, whether its direction of travel changed immediately beforehand, it is impossible to determine that any such breach on the part of the respondent was causative as to the injury, namely at the time and place when the respondent would have had the first available opportunity to observe the deceased, whether there would have been sufficient time and opportunity for her to have avoided a collision.”

13   If, for example, he was travelling at some speed, it is not easy to see how Miss Melia could be liable.
14   I would dismiss the appeal with costs. 15   FITZGERALD JA: I agree with Meagher JA.