PLATT v THE NOMINAL DEFENDANT [1989] NSWCA 166

PLATT v THE NOMINAL DEFENDANT

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SAMUELS and MEAGHER JJA 22 November 1989, 22 November 1989 [1989] NSWCA 166

NEGLIGENCE — no question of principle. ORDER Appeal is dismissed with costs.

Samuels JA This appeal is from a decision of his Honour Judge Madgwick in which he gave judgment for The Nominal Defendant, the present respondent, in an action for damages brought in the District Court by the present appellant arising out of a motor vehicle accident which occurred on 21 June 1981.

The circumstances shortly were these. The appellant then holding a provisional licence and aged seventeen years with only about two months' driving experience, was driving at about two o'clock in the morning up a slight hill; the grade is not precisely determined by the evidence but towards a crest and rounding a very slight right-hand bend. His evidence was that at about the moment that he came over the crest he was faced with the dazzling headlights of a vehicle travelling towards him which disoriented him, and he swerved to the left, lost control of his vehicle and the last he remembered was a collision with a power pole.

It is clear that he did collide with a power pole in bushland to the left of his correct side of the road, so that ultimately he must have moved to the left as he explained and in that collision he unfortunately sustained injuries of some severity. The vehicle which the appellant identified as the cause of his damage did not stop. Hence the action against The Nominal Defendant.

There is another version, however, given by a witness, Mr Jones, quite unconnected with the cause of either party. He was travelling in the opposite direction and there were two vehicles some distance ahead of him, he being, as it were, the third in a column of three. He was unable to say whether the leading one of these two vehicles had its headlights on the high beam or low beam. They both were about 400 yards ahead. I infer from the evidence that they were travelling fairly close together.