McInnes, Colin David & Anor v. Corney, Francis Harold [1978] FCA 76

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY No. NTG 20 of 1977

GENERAL DIVISION j

BETWEEN :

COLIN DAVID McINNES and KENNETH MATTHEW Mc INNES

Appellants

AND: FRANCIS HAROLD CORNEY

Respondent

ORDER

JUDGES MAKING ORDER: Forster, St. John and Fisher JJ

DATE OF ORDER: 1 September, 1978

WHERE MADE: Darwin

THE COURT ORDERS THAT: The Appeal be dismissed with costs.

IN THE FEDERAL COURT OF AUSTRALIA ) )

NORTHERN TERRITORY DISTRICT REGISTRY ) NTG 20 of 1977 ) )

GENERAL DIVISION

BETWEEN:

COLIN DAVID McINNES and KENNETH MATTHEW _McINNES

Appellants AND:

FRANCIS HAROLD CORNEY

Respondent

CORAM: Forster, St. John and Fisher Ju.

Delivered 1 September 1978.

REASONS FOR JUDGMENT

Shortly after 8.00 p.m. in the evening of 4 February 1975 the respondent with two of his workmates was walking along Casuarina Drive, Nightcliff in the City of Darwin on his way to the Seabreeze Motel. All three were tradesmen who had volunteered to come to Darwin to assist in repairing the ravages of Cyclone Tracy to that city which had occurred on 25 December 1974. They were walking on the roadway abreast, with

the respondent furthest from the gutter and towards the

centre of the road. Whilst so walking the respondent was struck from behind by a motor vehicle driven by the first appellant and owned by the second appellant.

The respondent sued the appellants in the Supreme Court of the Northern Territory claiming damages for his injuries caused as he alleged by the first appellant's negligence in the management of the motor vehicle. The appellants disputed negligence on their part and contended that the respondent's negligence caused or contributed to his injuries. The trial judge found that the injuries were caused by the negligence of the appellants, declined to find contributory negligence on the part of the respondent and entered judgment for him for $70,351 with costs.