BELZ v OSLOB PTY LTD OSLOB PTY LTD v BELZ [1989] NSWCA 19

BELZ v OSLOB PTY LTD OSLOB PTY LTD v BELZ SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, CLARKE and KIRBY P 15 December 1989

[1989] NSWCA 19

DAMAGES — damage to motor car — prima facie the measure of damages is the cost of repairs.

Samuels JA In 1984 the respondent through the agency of its proprietor, Mr Daniberg, lent a motor car to one or other or both of the appellants. It seems to have been agreed between the parties, and it is not challenged here, that there was a gratuitous bailment of the car, subject possibly to what has been described as a condition, although not a contractual one.

My first impression upon reading the evidence was that the bailment had been made to the first appellant on the understanding that the second appellant, her daughter, would drive the motor vehicle, because the purpose of the transaction was to supply the second appellant with a car while her own was undergoing repairs. The first appellant, I should add was, at the time, an old friend of Mr Daniberg. However, having heard Mr Graham QC's argument for the appellants, I have come firmly to the conclusion that the learned judge was correct in determining that the bailment was to both of them. It is really a difficult matter to distinguish between them. The first appellant seems to have made the request, but it was understood that the second appellant would use the car, as indeed she did.

While driving the car a day or so later, she had an accident with a Government bus in Victoria Road, Bellevue Hill. The learned judge who tried the matter, Judge McCredie, in the District, came to the conclusion that the accident was caused by the second appellant's negligent driving. The circumstances were, according to the second appellant, that while she was travelling uphill at a slow speed, a car pulled out from the kerb in front of her. She, in an effort to avoid it, applied her brakes, swung to her right and collided head-on with a Government bus coming down the hill which she had not seen before impact. The judge took the view that she had failed to keep a proper lookout and in those circumstances I am far from satisfied that his conclusion was wrong.