VUKOVIC v RIZK [1992] NSWCA 263

VUKOVIC v RIZK

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE and Cripps JJA 22 April 1992, 8 July 1992 [1992] NSWCA 263

NEGLIGENCE — contributory negligence apportionment — challenge to — young girl struck near but outside pedestrian crossing — 50/50 apportionment undisturbed on basis of evidence accepted and confirmed by contemporaneous police notebook.

Talbot-Buff v Holloway (1990) 12 MVR 70 applied. JUDGES — adverse comment on emotional response of father seeing daughter injured in motor collision — need for restraint in judicial comment.

NEGLIGENCE — motor vehicle impact — impact near pedestrian crossing — conflict of testimony — trial judge (Conomos DCJ) finds negligence but apportions 50% contributory negligence — appeal to Court of Appeal — held: (1) Appellate restraint in disturbing the apportionment was required because of (a) the general principle limiting interference in such apportionments. Pennington v Norris (1956) 96 CLR 10, 16; Talbot-Butt v Holloway (1990) 12 MVR 70 (NSW CA) applied; and (b) the trial judge's preference for the evidence of the driver over that of the pedestrian based on the impression of them as witnesses. Dawson v Westpac Banking Corporation (1991) 66 ALJR 94 (HC) applied; (2) Upon the facts as accepted the apportionment was unassailable; (3) The contemporaneous record of the police notebook admitted into evidence did not provide incontrovertible facts to permit the Court to set aside the conclusions of the trial judge and reach conclusions of its own. Chambers v Jobling (1986) 7 NSWLR 1 (CA) consd; (4) Appeal dismissed with costs. JUDGES — comment on witnesses — observations by Kirby P on the need to avoid irrelevant homilies and reflections upon the unmanly behaviour of an injured plaintiff's father in respect of a "lady driver" as not germane to the issues of negligence and contributory negligence to be tried — need for awareness of different reactions according to different cultural norms in modern Australian society mentioned.