Nesterczuk v Mortimore [1965] HCA 60

High Court of Australia McTiernan, A.C.J. Kitto, Menzies, Windeyer, and Owen JJ. Nesterczuk v Mortimore [1965] HCA 60

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 19 McTiernan A.C.J.

This appeal relates to an action of negligence which arose out of a collision on a road in South Australia—the Cavan Road. The vehicles which collided were a motor cycle (with a side-car attached) and a motor car. The plaintiff was the driver of the former and the defendant was the driver of the latter. There was no passenger in either vehicle. The vehicles were proceeding in opposite directions. The road was straight and level. The sealed surface of the road on which the vehicles were travelling was twenty-two feet wide. It was night when the collision occured. No question of faulty lighting or undue speed was raised. The curious feature of the case is that although each party said in evidence that he was travelling on his proper side of the road and observing the other vehicle and the trial judge could not reject the evidence of either, the vehicles did in fact collide. Both parties gave the same explanation, namely that the other vehicle must have swerved, but each party admitted fully that he did not see a swerve or movement by the other's vehicle. Each vehicle was damaged on its right-hand side only.

The plaintiff was seriously injured as a result of the collision. He claimed damages for the injuries he suffered and the cost of repairing his motor cycle. The defendant counter claimed for the damage done to his motor car. The issues raised by the pleadings were whether the collision was caused by negligence on the part of the defendant or the plaintiff and, if caused by negligence on the part of the defendant, whether the plaintiff was guilty of negligence contributing to the damage he suffered. The common law as to contributory negligence was altered by a statute of South Australia (No. 50 of 1951) which enacts s. 27 (a) of the Wrongs Act, 1936-1951. The section provides that— "(3) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage".