KRAUSE V. WELBY

©.12280/45

H, Dar, Gov, Print, Mat.

IN THE HIGH COURT OF AUSTRALIA

REASONS FOR JUDGMENT

| Judgment delivered at_Syaney. on. Friday, 28th August,.1953

KRAUSE

WELBY

ORDER

Appeal allowed with costs. Judgment below set aside. Order that the action be remitted to the Supreme Court to assess the damages suffered by the plaintiff as a result of the negligence of the defendant

complained of in the statement of claim.

JUDGMENT

KRAUSE

WELBY

WILLIAMS J. Wisp J. TAYLOR J.

KRAUSE

Ve WELBY WILLIAMS J. JUDGMENT WEBB JT. TAYLOR J.

This is an appeal by the plaintiff from a judgment of the Supreme Court of Queensland which Matthews J. ordered to be entered for the defendant in an action tried without a jury in which the appellant sued the defendant, the present respondent, for damages for personal injuries. The evidence shows that for some six months prior to the accident in which the appellant was injured the respondent resided with the appellant and her husband at their home in Dalby. On one side of the cottage in which they resided there was a drive-way leading from a pair of double gates on the front alignment to a garage erected towards the rear of the block of land upon which the cottage was erected. This garage was used by the respondent for the purpose of garaging his motor vehicle which was a utility truck some six feet in width. On the night upon which the accident happened the respondent had undertaken to drive the appellant to her daughter's home and she and the respondent left together by the front door of the cottage, the respondent thereafter proceeding to the garage in order to enter his truck and back it out along the drive-way and on to the street whilst the appellant went towards the front gates in order to open them. The appellant says that she had frequently opened the

gates for the respondent and that on this occasion she told him