SULTAN v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1988] NSWCA 150

SULTAN v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

Hope JA, SAMUELS JA and MCHUGH JA

16 August 1988

[1988] NSWCA 150

NEGLIGENCE — appeal from District Court — no question of principle.

Samuels JA. On 17 January 1985, on the Princes Highway near the Unanderra Swimming Pool, there was a fracas involving the plaintiff (the present appellant), her husband, her brother-in-law and a National and Roads and Motorists" Association patrolman, whose name was Bennett.

There was an altercation between Mr Bennett and Mr Sultan, the plaintiff's husband, with which I will have to deal in a little more detail in a moment, and Mr Bennett returned to the van from which he had alighted in order to leave the scene. When he drove off the side of the van struck the plaintiff on the elbow, as a result of which she sustained injury.

She brought an action to recover damages in the District Court, asserting that her injury was caused by Mr Bennett's negligence. The action was heard by her Honour Judge Mathews (as she then was), who concluded that the plaintiff had failed to establish Mr Bennett's want of care and directedjudgment for the defendant. It is from that order that the present appeal comes.

The facts of the occurrence have been fully set out in her Honour's judgment and I think the simplest way of dealing with the matter is to recapitulate the relevant parts of the occurrence as I come to deal with the submissions which have been put to us this morning on behalf of the appellant by Mr Macfarlan and Mr Donaldson.

In short, what happened was that the patrolman, Mr Bennett, having rendered assistance once to get Mr Sultan's car moving, went on to a second call, passing Mr Sultan whose car had by then stopped again. Mr Sultan signalled him to stop but Mr Bennett felt that he was obliged to move on to his next call. This omission evidently angered Mr Sultan because when Mr Bennett returned, having been directed by his base to go back to the Sultans, and got out of his car and set up his emergency lights and so forth Mr Sultan grabbed him by the shirt collar and swore at him.