CHOUDHARY v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1991] NSWCA 53

CHOUDHARY v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, HANDLEY JJA Hope AJA 24 September 1991, 24 September 1991

[1991] NSWCA 53

NEGLIGENCE — contributory negligence — apportionment — no interference with conclusions of trial judge — Pennington v Norris (1956) 96 CLR 10 and Podrebersek v Australian Iron and Steel Pty Ltd (1984-85) 59 ALR 529 applied.

Samuels JA This appeal arises out of a judgment of his Honour Judge Walsh in the District Court in which he awarded the appellant damages for personal injury sustained in a motor vehicle accident which occurred on 13 December 1984 at the intersection of Alfred and Eleanor Streets, Harris Park.

The circumstances of the accident may be shortly described in this way. The plaintiff (the appellant) gave one version to a police officer, Constable Rumsby, who attended at the scene, and another in evidence, but there is little difference, in my opinion, between the two accounts.

Essentially, the plaintiff's version of the accident was that he was travelling in a southerly direction downhill in Harris Street, driving a Mercedes Benz motor car at, he said in his statement to the police, fifty kilometres per hour; looked to his right on approaching the intersection; and then, as he was in the act of "turning his neck" to look to the left, saw the station wagon driven by the other driver right in his path. He had no time in which to apply his brakes, struck the other vehicle broadside on and rolled it over two or three times. Both drivers sustained injury.

The version of the other driver, Mrs McFarlane, was that she was driving in a westerly direction in Eleanor Street, following her husband. At the intersection, facing the direction in which the husband and Mrs McFarlane were travelling, was a Stop sign. She said that she stopped at the sign; looked up the hill; saw no vehicle approaching; and took off, intending to turn right at Alfred Street, which was the direction her husband had taken. She saw nothing of the appellant's vehicle except a flash at the last moment.