COLE v PEARCE [1989] NSWCA 40

COLE v PEARCE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, CLARKE and MEAGHER JJA 14 August 1989, 14 August 1989 [1989] NSWCA 40

NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — APPEALS ON TRIAL JUDGE'S FINDING ON CREDIBILITY, APPORTIONMENT, DAMAGES FOR LOSS OF EARNING CAPACITY AND GENERAL DAMAGES ORDERS Appeal dismissed with costs.

Meagher JA In this matter the appellant was injured in a motor car accident when her car collided with the car driven by the respondent at the corner of Hill Street and Gardener Road, Orange, on 21 March 1978. She sued the defendant in negligence and the matter was heard by his Honour Judge Shannon in the District Court, his Honour giving judgment on 2 June 1982.

His Honour found that the plaintiff was successful in proving negligence in the defendant, and that finding is not in dispute. His Honour also found that the defendant, who is now the present appellant, was guilty of contributory negligence. He apportioned the negligence as 25 per cent, and he found for her in the sum of $17,282.37. That figure represented an out of pockets component, a component for past loss of wages and a component for general damages. Nothing was given for impaired earning capacity.

Two features arise out of that matter. One is that his Honour found it very difficult, although the accident seemed a simple one, to make the relevant findings of fact in view of the fact he had to give judgment on matters which had occurred four years before he delivered judgment.

The matter is compounded in this court where it has taken the appellant seven years to bring on this appeal. The other factor to which I should refer is that his Honour the trial Judge in effect largely disbelieved the appellant's account of the accident and found her an unconvincing witness.

In these circumstances, Mr Serisier has with great skill undertaken what must be the very difficult task of disturbing factual findings made seven years ago, based as they are largely on credibility. He first submitted to us that there was no justification for any finding by his Honour that the appellant was guilty of contributory negligence at all. However, the evidence of the respondent and the evidence of an independent witness, perhaps even evidence of the appellant herself, provide ample justification, in my view, for his Honour's finding that the appellant was travelling at an excessive speed and that she had failed to keep a proper lookout, in particular in the circumstances where the road was already wet and slippery, and that to her knowledge. I see no reason why this court should disturb his Honour's finding that there was contributory negligence.