Viet Hong Lieng v Harold Delvers

NEW SOUTH WALES COURT OF APPEAL

CITATION:     Viet Hong Lieng v Harold Delvers [2002]  NSWCA 170

FILE NUMBER(S):
40775 of 2001

HEARING DATE(S):    04/06/02

JUDGMENT DATE:      04/06/2002

PARTIES:
Viet Hong Lieng
v
Harold Delvers

JUDGMENT OF:        Meagher JA Foster AJA Ipp AJA   

LOWER COURT JURISDICTION:       District Court

LOWER COURT FILE NUMBER(S):     2449 of 2000

LOWER COURT JUDICIAL OFFICER:   Nield DCJ

COUNSEL:
Appellant: Mr B Hall QC & M Gillies
Respondent: Mr R Bartlett SC & J Ryan

SOLICITORS:
Appellant: Konstan Lawyers
Respondent: Abbout Tout

CATCHWORDS:
Motor Accidents Act - Derrick v Cheung (2001) 181 ALR 301 - liability - whether an inference in favour of negligence could be drawn - appeal dismissed with costs.

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA40775 of 2001

MEAGHER JA
FOSTER AJA
IPP AJA

Tuesday, 4 June 2002

VIET HONG LIENG v HAROLD DELVERS

Judgment

1. MEAGHER JA:  The appeal is an appeal from his Honour Judge Neil from an accident which occurred in The Horsley Drive at Smithfield.  The plaintiff, for whom one cannot help feeling extremely sorry, was driving in a westerly direction along what I shall call lane three.  By that I mean The Horsley Drive was divided down the centre so there were two lanes of traffic on the northerly side and two lanes of traffic on the southerly side.  The lane closest to the kerb on the northerly side I shall call lane one, the next lane lane two, lane three and lane four is the lane closest to the kerb side on the southern side.  The plaintiff was driving along lane three, he intended to go into premises 723 The Horsley Drive which is on the northern side of the road. 

2. One would normally expect him under those circumstances to go to the next break where he could safely do a u-turn and come back and then drive in an easterly direction drive into the premises at number 723, however, he did not do that.  In the midst of fairly heavy traffic he went halfway down lane three and then stopped in the middle of lane three at a distance not very far from the premises which were his destination and waited there.  In the meantime traffic going in the other direction, going in an easterly direction, was coming down lane two and a sedan in lane two stopped giving a gap between it and the car more easterly than it which would have, other things being equal, permitted the plaintiff to go through the gap and then across lane one onto the northern side of the road. 

3. After stopping in lane three he went through the gap and then stopped in lane two.  He looked to the left but could not see anything because there was a sedan in front of him which had stopped to permit him to make his manoeuvre and behind that were at least two large lorries and I assume, since…