Sung v Patterson

[2001] NSWCA 210

CITATION:	Sung v Patterson [2001] NSWCA 210
FILE NUMBER(S):	CA 40457/00
HEARING DATE(S):	29 June 2001
JUDGMENT DATE:	29 June 2001
PARTIES :	David Sung (Appellant) v Alexander Patterson (Respondent)
JUDGMENT OF:	Beazley JA at 14; Giles JA at 15; Davies AJA at 1

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	3375/99
LOWER COURT JUDICIAL OFFICER :	Rolfe DCJ

COUNSEL:	A: Mr B McManamey R: Mr L Morris QC with Mr W Fitzsimmons
SOLICITORS:	A: Turner Freeman R: Abbott Tout
CATCHWORDS:	District Court - motor vehicle accident - pedestrian hit by car whilst running across road at crossing controlled by lights - whether respondent had time to avoid accident
CASES CITED:	Stocks v Baldwin (1996) 24 MVR 416 Clarke v Freund (1999) 29 MVR 361
DECISION:	Appeal dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40457/00
DC 3375/99

BEAZLEY JA

GILES JA

DAVIES AJA

FRIDAY 29 JUNE 2001


DAVID SUNG v ALEXANDER PATTERSON

JUDGMENT

1    DAVIES AJA: This is an appeal from the judgment of a judge of the District Court of New South Wales, his Honour Judge R A Rolfe. The learned trial Judge dismissed a claim brought by David Sung, the appellant, for damages arising out of a motor vehicle accident which occurred on 5 September 1995.

2    The accident occurred at the intersection of First Avenue, a street which runs east-west, and East Parade, which runs north-south. The intersection is controlled by traffic lights. The appellant was a pedestrian who had been crossing from the southern side of First Avenue to the northern side. First Avenue has a median strip. At the traffic lights, it has four lanes in its southern section, a left-hand turning lane, two continuing lanes and a right-hand turning lane. The appellant was in the middle of the second continuing lane when he was struck by the respondent's vehicle which was travelling west into the intersection.

3    The appellant gave several versions of the incident, all of which the trial Judge rejected. His Honour said, "the plaintiff has given a number of different accounts of how the accident occurred, all of which are untruthful". The trial Judge relied principally upon the evidence of Mr Stephen Murphy. The trial Judge described Mr Murphy's evidence in this way:-

"Mr Murphy said that he was travelling westerly on First Avenue towards East Parade and came to a stop at the traffic lights. There were four lanes travelling west. Mr Murphy's vehicle was stopped in the second lane because the lights were red. There was one vehicle in front of him and it was a van. Its windows were locked up. As best as he could recall, there was one vehicle behind him and one vehicle in the left hand turning lane. There was no vehicle which was stopped in lane three.
Mr Murphy observed the plaintiff walking towards the traffic lights with the apparent intention of crossing the street. As the plaintiff got closer…