MEARBANI v STEFFAN [1990] NSWCA 124

MEARBANI v STEFFAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and CLARKE JJA 13 July 1990, 13 July 1990

[1990] NSWCA 124

Appeal from District Court — Motor vehicle accident at T-intersection — Liability of defendant admitted — Plaintiff found 40 per cent responsible for accident because of his failure to keep a proper lookout: to his left — Held: (1) Plaintiff was guilty of contributory negligence because of that failure; (2) Responsibility reduced to 10 per cent; (3) Otherwise damages not varied

Mahoney JA This appeal arises frorn a motor vehicle accident that took place on 24 August 1983 at the intersection of Carawatha Street and Yugilbar Avenue, Villawood. The plaintiff was driving along Carawatha Street. The defendant was driving out of Yugilbar Avenue, and there was a collision. The defendant has admitted liability in negligence for the collision.

The learned judge, on hearing of the plaintiff's claim, held the plaintiff to have been guilty of contributory negligence in relation to the accident and responsible to the extent of 40 per cent. His Honour assessed the damages at $11,205.67 and accordingly gave judgment for the plaintiff for $6723.40. The plaintiff has appealed to this Court against the judgment given.

The appeal, as argued before this Court, has related to three issues. The plaintiff has submitted first that there was no contributory negligence; second, that if there was, the assessment of it at 40 per cent was too high; and third, that the award of general damages of $7,000 was appealably low.

The evidence discloses, as I have said, that the plaintiff was driving in Carawatha Street, which forms a T-intersection with Yugilbar Avenue. Carawatha Street is the cross arm of the T-intersection. The plaintiff was driving south in that street. The defendant drove out of Yugilbar Avenue from the plaintiff's left side. The point of impact was, as the case was conducted, agreed. It was said that it was approximately 4 metres south of the northern kerb alignment of Yugilbar Avenue and two metres west of the eastern kerb alignment of Carawiltha Street.