COOTES AND ANOTHER V. LEVERENZ

INAL

IN THE HIGH .COURT OF AUSTRALIA

nse COOTES AND ANOTHER

REASONS FOR JUDGMENT

ADELAIDE REGISTRY LED

17 alle 1958

Judgment delivered at... Sydney» 'W.-M. Houston, Govt, Print Math, on..Wednesday,..15th August..1956...

©1078 /55

COOTES & ANOR.

LEVERENZ

ORDER

Appeal allowed with costs. Discharge so much . of the judgment of the Supreme Court as relates to the apportionment of damages and as enters judgment. In lieu thereof order that the damages found be apportioned equally

and that judgment in the action be entered for £1375:11:5 with

costs.

OOTES & ANOR.

Ve LEVERENZ JUDGMENT DIXON C.Je

WILLTA

COOTES & ANOR.

Ve

LEVERENZ

This appeal concerns an accident which occurred as long egoas 24th September 1952. It occurred because the handle on the off side of a motor cycle and side box came into contact with the off side of a motor truck going in the opposite direction. The motor cyclist, who was injured quite seriously, brought an action of damages against the driver and the owner. of the truck and by a judgizent pronounced by Ligertwood J. on lst December 1955 recovered £2200:18:2 from the defendants. His Honour assessed the actual damages sustained by the plaintiff at £2751:2:9 and considered that the plaintiff himself had been guilty of some contributory negligence although he was not very blameworthy. Accordingly his Honour apportioned the damages between the plaintiff and the defendants in the proportions of 80% and 20%. The defendants appeal from this judgment on the ground that liability ought not to have been held established and alternatively that the apportionment was too favourable to the plaintiff.

The accident occurred in the Adelaide suburb of Woodville upon a long but not very wide street called Oval Avenue. The general direction of Oval Avenue is from the south- west to the north-east. At the place where the accident occurred the street curves. The motor cycle was equipped with a side box attached to its left-hand side. At about 7.30 in the morning on 24th October 1952 the plaintiff, who is a carpenter, then about twenty-three years of age, was driving the motor cycle in a northerly direction. In front of him was a cream Austin A4O sedan car and he drove closely behind it. He was travelling on a bitumen part of the road which consisted of a strip forming the carriage way 15 feet wide. On either side there was an unpaved