GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v SAUL [1992] NSWCA 95

GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v SAUL

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, CLARKE and HANDLEY JJA 13 February 1992, 13 February 1992 [1992] NSWCA 95

Motor vehicle accident — Plaintiff mowing nature strip with foot of roadway — Issue of fact — No error. APPEAL from Common Law Division — Motor vehicle accident Issue of fact — No error — No issue of principle.

ORDER Appeal dismissed with costs.

Mahoney JA On 4 January 1986 the plaintiff was mowing the nature strip on the western side of the Princes Highway north of Rocky Point Road; he stepped back onto the road or further onto the road so that he was about eighteen inches or so from the kerb and he was struck by a motor vehicle driven by Miss Hopkinson, the insured, for whom the Government Insurance Office is responsible. He was significantly injured.

On 29 November 1989 Master Greenwood assessed the plaintiff's damages at $387,951. He assessed the plaintiff's responsibility for the accident at twenty-five per cent and gave the plaintiff judgment for $290,963.

The defendant appealed to this Court against the Master's judgment. The original appeal raised as issues for argument two matters, the apportionment of twenty-five per cent to which I have referred and the quantum of the damages. The quantum of the damages has now been effectively abandoned; need not refer to it further.

Shortly before the hearing of the appeal counsel then briefed for the defendant/appellant notified counsel for the plaintiff that it was proposed to seek an amendment of the grounds of appeal to argue the negligence issue, that is there should be a verdict for the defendant because the driver was not negligent. Objection was taken to that amendment. The court heard short argument on the proposal for amendment and indicated the convenient course would be for counsel for the defendant to argue the issue of negligence and the court would subsequently decide whether or not to grant the amendment. In the event I do not think that it matters whether the amendment is granted or not because for the reasons to which I shall refer I think the defendant has failed or would fail upon any issue of negligence.