COX v TUTT [1990] NSWCA 48

COX v TUTT

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, PRIESTLEY and HANDLEY JJA 28 March 1990, 28 March 1990

[1990] NSWCA 48

NEGLIGENCE — no question of principle.

Samuels JA This appeal arises out of an accident which occurred on 13 February 1981 on theCahill Expressway between the plaintiff riding a motor cycle and the defendant driving a large motor car.

The trial did not come on for hearing until 21 July 1987 and the appeal has not been heard until today, notwithstanding that the notice of appeal was filed on 18 August 1987, judgment having been given by Foster J on 21 July 1987, and the index to the appeal book was settled on 10 December 1987. Therefore, up to that last date, all since the trial appears to have proceeded with due expedition. I will have enquiries made to see if it is possible to ascertain where the responsibility for the subsequent delay lies.

To return to the facts of the case, the plaintiff's evidence was that while negotiating a fairly gentle right hand turn the vehicle next to him, which was the vehicle driven by the defendant, encroached upon his traffic lane and, as he put it, "side-swiped me": that is to say there was a side to side collision of some kind which threw the plaintiff off his machine onto the road some distance ahead of the defendant's vehicle. Fortunately, the defendant was able to stop before running over the plaintiff.

The defendant's version - or, as counsel for the appellant would insist, the defendant's versions - were to an entirely different effect. In a statement which was contained in the investigating police officer's notebook and signed by the defendant, he says "I was travelling north in the number one lane at about 50 kph. I saw a single light come from behind and the next instant a motor cycle collided with the right side of my car. At the time of the collision I was entirely in the number one lane."