DEVINE V. GEEVES

o.7103 750

ete

J.J Gourley, Gort. Print, etd,

§ Apiaceae apc

ORIGINAL *

IN THE HIGH COURT OF AUSTRALIA

REASONS FOR JUDGMENT

DEVINE

GEEVES

ORDER

Appeal dismissed with costs.

JUDGMENT.

DEVINE

GEEVES

DIXON C.J.

DEVINE

GEEVES

This appeal relates entirely to a question or questions of fact, namely whether the plaintiff appellant was guilty of contributory negligence and if so, what apportionment of damages should be made between the parties. It is nota matter on which a Court of Appeal should interfere with the decision of the trial judge unless very satisfied that an error has been made. The other members of the Court are satisfied that no such error occurred. In face of these considerations the contrary view is very unlikely to be correct. But there still appears to me much to be said for the simple explanation of the accident put for the appellant. That explanation is that a semi-inebriated driver having passed on the right hand of one vehicle travelling in the same direction began to swing out further to pass the next and while thus travelling to some extent on the wrong side of the road struck the oncoming motor cycle. The pictures of the damaged vehicles as well as the circumstances lend support to that theory. It is one which might make it right to decide that the defendant placed himself in the wrong and cannot complain that the plaintiff, who was in the right, failed at the last moment to avoid a collision thus made almost inevitable.

JUDGMENT

PB KENNETH DEVIN.

Ve

MALCOLM DRYSDALE GEEVES

FU.

Je

Je

PERCY KENNETH DEVINE ve

MALCOLM DRYSDALE GEEVES

On the 21st January 1956 the appellant's motor-cycle came into collision with the respondent's car in Sandy Bay Road, near Hobart. The collision occurred shortly before 8 p.m. when it was still light and visibility was good. The motor-cycle, which carried a young woman as a pillion-rider, was being ridden by the appellant away from the city and the respondent's motor-car was travelling in the opposite direction. The locus of the collision was between the points where Earl Street and Nelson Road debouch into Sandy Bay Road and the impact took place some seventy or eighty yards after the cycle had passed over the crest of a slight rise in Sandy Bay Road. The latter road is constituted by a strip of bitumen in the centre and strips of concrete on each side. According to the evidence the bitumen strip is eighteen feet three inches wide and the concrete strips thirteen feet and fourteen feet nine inches wide respectively. The concrete strip on the river side of the road was the wider and this constituted the major part of the left-hand side of the road for traffic proceeding away from Hobart. The total width of the roadway, it will be seen, is forty-six feet and it was established by evidence relating to marks on the roadway that the two vehicles collided at a point approximately twenty- one feet from the kerb line on the river side of the road. It was the off-side front mudguard of the car which came into collision with the cycle so that it is reasonably clear that the car was at that time travelling with its off-side wheels about two feet over the centre of the road. 0n the other hand, although the roadway between the kerb line on the river side