GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v WOLSKA-GROMEK [1991] NSWCA 122

GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v WOLSKA-GROMEK

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SAMUELS and CLARKE JJA 11 February 1991, 26 February 1991 [1991] NSWCA 122

NEGLIGENCE — motor vehicle — motorist plaintiff attending to mechanical difficulties sustains injuries at side of road — injuries occasioned by fast moving passing motor vehicle which is unidentified or by a "woosh" which results in fall — Master finds negligence and rejects contributory negligence — held: (1) The finding of negligence was open to the Master upon his acceptance that the plaintiff's fall was occasioned by a passing unidentified motorist who came too close to the plaintiff. Abalos v Australian Postal Commission (1991) 65 ALJR 11 referred to; (2) Contributory negligence was not established as the plaintiff had acted normally and reasonably and without any lack of attention for her own safety. Thomopolos v Blackburne (1989) 10 MVR 7 distinguished.

Kirby P, Samuels and Clarke JJA Two issues are raised in this appeal. The first is whether the decision at first instance by Master Malpass demonstrates an error in the holding of negligence on the part of the appellant. The second is whether an error is shown in the Master's rejection of the defence of contributory negligence. Woman injured near the side of a road Mrs Zofia Wolska-Gromek (the respondent) received injuries on 25 June 1985. She alleged that her injuries arose out of the negligence of a driver of an unidentified motor vehicle. The Government Insurance Office of New South Wales (the appellant) is in law responsible for any such negligence. The Master found that the necessary preconditions for recovery relating to due search and inquiry had been established. No challenge is raised in respect of that finding.

The respondent's proceedings arose from an incident which occurred in Centenary Drive, Strathfield West at about 5.40 am on the day stated. The respondent gave evidence that, prior to injury, she had been travelling in a northerly direction in the third lane of the road, ie the lane closest to the centre of the carriageway. She noticed a high temperature reading on the water gauge of her vehicle. She had previously experienced a problem with a boiling radiator. Accordingly, she changed lanes immediately, driving her vehicle to the kerbside lane. She stopped her vehicle there. She gave evidence that it was about | metre inside the marked traffic lane dividing the kerbside lane from the other lanes in the north-bound carriageway. A vehicle proceeding safely within the adjacent marked lane would therefore be more than a metre from the respondent's person as it passed by her, standing near her vehicle.