GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v RAYMON [1991] NSWCA 121

GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v RAYMON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MEAGHER and HANDLEY JJA 2 December 1991, 2 December 1991

[1991] NSWCA 121

NEGLIGENCE — contributory negligence — apportionment — car in reviewing — motor car collision — apportionment manifestly wrong — set aside for error — plaintiff's responsibility for damage increased from 15 per cent to 50%. Pennington v Norris (1956) 96 CLR 10; AV Jennings Construction Pty Ltd v Maumill (1956) 30 ALJ 100 distinguished.

NEGLIGENCE — contributory negligence — motor vehicles collide at intersection — respondent commenced right-hand turn across the path of appellant's insured — respondent noses 18 inches to 2 feet across imaginary centre line insured travelling too fast to allow avoidance of clip impact — Master Greenwood finds negligence of insured and contributory negligence of 15 per cent by respondent — on appeal to the Court of Appeal by the insurer — held: (1) (By the Court) Appellate courts must approach the review of the apportionment of contributory negligence with great care. AV Jennings Construction Pty Ltd v Maumill (1956) 30 ALJR 100; Pennington v Norris (1957) 96 CLR 10, 15; McCutcheon v Muir, Court of Appeal, unreported, 1 February 1989; (1989) NSWJB 28 applied; (2) (By Kirby P and Handley JA; Meagher JA dissenting) Although no error of law or fact finding was shown, the apportionment was so manifestly erroneous as to disclose error; (3) (By majority) An apportionment of 50 per cent should be substituted. Discussion by Handley JA of the nature of the apportionment decision as akin to a discretionary judgment and its susceptibility to applicable review on a similar basis.

Law Reform (Miscellaneous Provisions) Act 1965, s10(1).

ORDERS

1. Appeal allowed;

2. Confirm the first finding of the Master;