Slinn v Nominal Defendant [1964] HCA 72

High Court of Australia Barwick C.J. McTiernan and Taylor JJ. Slinn v Nominal Defendant [1964] HCA 72

ORDER Appeal allowed with costs. Judgment of the Supreme Court set aside and in lieu thereof enter judgment for the plaintiff and remit cause to the Supreme Court of the Australian Capital Territory to assess the damages.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 17 Barwick C.J.

In this action, which was brought in the Supreme Court of the Australian Capital Territory for damages for personal injury sustained in a road accident, judgment was entered for the defendant. The appellant appeals to this Court seeking the entry of judgment for the plaintiff and the remission of the action to the Supreme Court of the Australian Capital Territory to assess the damages.

The facts of the matter as found by the learned trial judge were that on the day in question at about 11 a.m. the plaintiff was driving a Holden station wagon from Cooma towards Canberra, her husband sitting beside her and her two young children in the rear seat. The day was bright and sunny. When the plaintiff was some six miles short of Canberra on a portion of the road which was straight, with a dry bitumen surface and reasonably free from traffic, she observed a car approching some two hundred yards away from her. It was "a medium-sized car, light grey or fawny-grey", as she said (which was all she could tell about it), and was travelling about two feet on its incorrect side of the road. The speed of the Holden station wagon at this time was some forty-five to fifty miles per hour, and the estimated speed of the approaching vehicle some seventy miles per hour. The oncoming vehicle did not alter its course and when it was a hundred yards or so away from her the plaintiff reduced the speed of the station wagon to some forty to forty-five miles per hour and gradually moved further to her left. However, the oncoming car still held on its course and passed her very closely. As the plaintiff said, "There was like a rush of wind and I thought I felt a slight thump on the side at the back and the tail of my car swung round." This movement of the Holden caused it to travel partly outside the bitumen on the gravel shoulder for some distance. It then got out of control, skidded across the road from one side to the other and eventually turned over on its side. The plaintiff was shocked and dazed and was taken to the Canberra Community Hospital where she remained for some two weeks. Her husband crawled out of the car through the broken windscreen. All that he could remember of the passing vehicle was that it was a sedan, greyish in colour and of a medium size. He had no idea how many persons were in it, but rather felt that the driver had been a woman. The two vehicles did not come into contact. It would seem that the thump which the plaintiff said she felt may have been due to her vehicle entering a pothole which was somewhere adjacent to the place where the vehicles may have passed.