DURWARD V. CRACK & ANOR.

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RE Re

IN THE HIGH COURT OF AUSTRALIA

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| .. REASONS FOR JUDGMENT FILED \ 9, ANG,1955

i BRISBANE REGISTRY

Judgment delivered at.

J. J Gourley, Gort. Print, Merb,

7168/51

DURWARD ve CRACK & ANOR.

Appeal allowed with costs. Judgment of the Supreme Court discharged. In lieu thereof enter judgment in

the action for the plaintiff for £500 damages and costs.

JUDGMENT (OAL)

DURWARD

Ve

CRACK & ANOR.

DIXON C.J WEBB S, EULLAGAR J. KITTO J, TAYLOR J.

RL

URW, v. CRACK & Re

This is an appeal by a plaintiff from a judgment for the defendant in an action for damages for personal injuries.

The judgment appealed from was given by Brown J. on l4th October 1954, The cause of action was negligence and the defence, besides traversing the allegation of negligence, set up a plea of con- tributory negligence. Brown J, found that there was negligence

on the part of the defendant but he also found that there was contributory negligence on the part of the plaintiff. He contin- gently assessed the damages. The two questions are, first, whether the finding of contributory negligence is to be supported; and, secondly, whether the amount of damages contingently assessed is sufficient.

The plaintiff received his injuries in a collision between a motor cycle he was riding and a utility truck driven by the defendant. The accident occurred on 25th August 1952, The date is important because at that time the plea of negligence was a complete bar if made out. The accident occurred on Beaudesert Road at Rocklea. The utility truck driven by the defendant was travelling north at a place where there is a bridge. Shortly after the bridge is crossed going north there is the opening of a street called Muriel Avenue to the left and somewhat further on an opening to the right of a road called Compo Road. The defendant was driving on his left-hand side of Beaudesert Road. He crossed the bridge at a speed which is estimated by the finding at 15 miles an hour. The plaintiff was following him on his motor cycle and was behind the utility truck. He caught up during the course of the journey as they approached the bridge. Immediately before the accident the plaintiff was travelling at the same speed a short distance behind the defendant's utility truck. It was in fact the intention of the defendant to turn left into Muriel Avenue after he had crossed the pridge. But he mistakenly gave a right-hand turn signal which, as