CONSTANTIN GEORGIEV v GUENTHER GROESCHL [1989] NSWCA 84

CONSTANTIN GEORGIEV v GUENTHER GROESCHL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Hope, SAMUELS and CLARKE JJA 14 March 1989, 14 March 1989

[1989] NSWCA 84

NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — DAMAGES — IMPAIRMENT OF EARNING CAPACITY — BIAS — NO QUESTION OF PRINCIPLE

Clarke JA This is an appeal by Mr Constantin Georgiev, the plaintiff in the court below, against the direction by McInerney J that judgment be entered in his favour in the sum of $25,144.

The plaintiff, as I will call Mr Georgiev, has challenged that judgment on three bases. He says that his Honour was in error in deducting 25% of the damages on account of his contributory negligence. In the second place he says that the assessment of damages was flawed in fundamental respects and that the court should set aside the award and direct a new trial. In the third instance he challenges the award upon the basis that it was the product of a biased mind; in other words he charges McInerney J with actual bias such as to require that the award be set aside.

It is convenient to deal in the first place with the challenge to the finding of contributory negligence. Before going to the facts I should point out that his Honour found that in all the circumstances of the case the defendant, who had been sued by the plaintiff, was not keeping a proper lookout and his failure to keep such a lookout was causally related to the injuries suffered by Mr Georgiev. Upon that basis he concluded that the plaintiff was entitled to a verdict. He then turned his attention to the question of contributory negligence and concluded that the plaintiff failed to observe the defendant's vehicle until a point at which it struck him or was just about to strike him.

Insofar as on his Honour's finding the accident took place just short of the centre of the road he came to the conclusion that if the plaintiff had looked before he started to cross the road or even after he had started to cross the road he would have observed the vehicle being driven by the defendant in plenty of time to take avoiding action. According to his Honour the failure to take any steps to become aware of traffic approaching constituted negligence on the part of the plaintiff which itself contributed to his accident. Upon the apportionment of fault between the plaintiff and the defendant his Honour concluded that the defendant was 75% to blame.