Sinclair v Darwich

[2010] NSWCA 195

New South Wales

Court of Appeal

CITATION:	Sinclair v Darwich [2010] NSWCA 195
HEARING DATE(S):	5 August 2010
JUDGMENT OF:	Young JA at [1], [42]; Handley AJA at [40]; Sackville AJA at [41]
EX TEMPORE JUDGMENT DATE:	5 August 2010
DECISION:	The application for leave to appeal is dismissed with costs.
LEGISLATION CITED:	Motor Accidents Compensation Act 1999, s 109
CATEGORY:	Principal judgment
CASES CITED:	Baker v Salagiannis [2009] NSWCA 385 Holt v Wynter (2009) 49 NSWLR 128 Reeves v Reeves [2002] NSWCA 181 Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367
PARTIES:	Wayne Sinclair (Applicant) Daniel Darwich (Respondent)
FILE NUMBER(S):	CA 2010/39177
COUNSEL:	W H Fitzsimmons (Applicant) K Andrews (Respondent)
SOLICITORS:	Hunt & Hunt (Applicant) Carneys Lawyers (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 4432/08
LOWER COURT JUDICIAL OFFICER:	Levy DCJ
LOWER COURT DATE OF DECISION:	18 November 2009
LOWER COURT MEDIUM NEUTRAL CITATION:	Darwich v Sinclair [2009] NSWDC 295

2010/39177

YOUNG JA
HANDLEY AJA
SACKVILLE AJA

Thursday 5 August 2010

SINCLAIR v DARWICH

Judgment

1 YOUNG JA: This is the concurrent hearing of an application for leave to appeal from a decision of the District Court and, if leave is given, a determination of the appeal.

2 The proceedings arise out of an incident that occurred on 27 February 2001. It seems tolerably clear that at about 6.45 pm on that date the respondent, then thirteen-years-old, was involved in an incident in a water shop in Juno Parade, Greenacre which caused the person apparently in charge of that shop, a gentleman of Asian extraction, to chase the respondent out of the shop and along Juno Parade possibly whilst holding a piece of wood. That person was referred to below as “the Asian man” and I will do the same.

3 The respondent decided to escape by running out onto Juno Parade. He seems to have been running diagonally. He safely passed through the eastern-bound lane but was hit by a vehicle being driven by the applicant whilst running across the western-bound lane. He was injured and taken to hospital. The police called at the scene. As will appear, the recollections of the two police officers who attended the scene are weakened by the delay and the notebook of one of them is missing. However, the respondent’s mother swore an affidavit that one of the policeman said to her at the hospital that the applicant was not speeding and the accident was the respondent’s fault for running across the road. The primary judge noted this, but said that that preliminary view of the police was not conclusive though it may have had the effect on the respondent’s mother of inhibiting her from having her son take legal action.

4 Statements of bystanders made at the time suggest that the respondent ran across the road without looking. Those statements also confirm the police view that the accident was probably the respondent’s fault.

5 The proceedings before the District Court were…