KOVACS v PORQUET [1992] NSWCA 126

KOVACS v PORQUET SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and PRIESTLEY JJA 13 May 1992, 13 May 1992

[1992] NSWCA 126

NEGLIGENCE — motor vehicle collision — plaintiff on motor cycle comes into collision with defendant's utility — plaintiff alleges defendant's vehicle swerved or turned back into path of plaintiff's cycle — trial judge (Finlay J) finds plaintiff is a reliable witness on facts — extraneous reasons support judge's conclusion — admissions made by defendant after accident — trial judge accepts admissions made — held: (dismissing defendant's appeal) (per Mahoney JA; Kirby P and Priestley JA concurring): It was open to the trial judge on the basis of his findings of fact and the impression of the plaintiff recorded in his reasons to conclude as he did — upon that basis the defendant's conduct amounted to negligence.

CONTRIBUTORY NEGLIGENCE — motor cycle clipped by utility which proceeded off the bitumen of the road party onto gravel and then returned and moved into path of cycle — trial judge (Finlay J) finds that plaintiff contributed to his own injuries — finds contributory negligence of plaintiff of 25% — basis of finding is the acceleration of plaintiff to overtake utility — held (dismissing appeal and cross appeal) (per Mahoney JA; Kirby P and Priestley JA concurring): No error shown — appeal dismissed. Podrebersk v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 applied.

Kirby P I shall ask Mahoney JA to give the first judgment.

Mahoney JA On 30 March 1986 the plaintiff was injured in a motor vehicle accident on the Pacific Highway near Bonville south of Coffs Harbour. He sued the defendant for damages basing his claim on negligence. On 6 March 1992 his Honour Finlay J assessed the plaintiff's damages at $603,503.

His Honour held the plaintiff to be guilty of contributory negligence or responsible for the accident to the extent of 25 per cent and therefore gave judgment for the plaintiff in the sum of $452,627.25.