BRYAN v PRINCE AND ANOR [1992] NSWCA 32

BRYAN v PRINCE AND ANOR SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MAHONEY and CLARKE JJA, and Hope AJA 17 March 1992, 17 March 1992

[1992] NSWCA 32

MOTOR VEHICLE ACCIDENT — CAR MAKING RIGHT-HAND TURN AT T-INTERSECTION — MOTOR CYCLE OVERTAKING ON RIGHT — WEIGHT TO BE GIVEN "EXPERT" EVIDENCE — APPEAL from Common Law Division — Motor vehicle accident — Car making right-hand turn at T-intersection — Plaintiff on motor cycle overtaking her on her right-hand side and striking car — Defendant not negligent.

WITNESSES — Whether errors in findings of fact sufficient to offset Master's advantage in seeing witnesses — Weight to be given to "expert" evidence to show

where collision took place and where plaintiff's body lay — Chambers v Jobling (1986) 7 NSWLR 1 referred to.

ORDERS Appeal dismissed with costs.

Mahoney JA The plaintiff was injured in a motor vehicle accident which occurredon | February 1981. The present proceedings were commenced in March 1986. The plaintiffs claim was heard by Master Greenwood during the period 13 to 16 March 1990. The Master gave judgment for the defendant. On 11 April 1990 he delivered his reasons for that judgment.

On the facts that were propounded by the defendant, the defendant was not, in my opinion, guilty of negligence in relation to the accident or the plaintiff's injuries. Subject to one matter, in my opinion, on her version of the facts, the fact that she was not guilty of negligence is clear.

The facts as deposed to by her, and as found by the Master upon the basis of the acceptance of her evidence, are set forth in detail in the Master's judgment. The Master said:

"...She was travelling north on Frederick Street, and at the traffic lights at the intersection of Elizabeth and Frederick Street she took up a position in Frederick Street in the kerbside lane. The defendant said that she did this as vehicles often make a right hand turn to the east into Elizabeth Street and vehicles waiting behind them to travel north along Frederick Street often miss the opportunity to do so. She said that when she was at the lights in Frederick Street there were in the outside lane on her right two vehicles which, she suspected, were about to turn right. When the lights changed she found that her suspicions were incorrect and that both these vehicles were travelling north along Frederick Street. They were travelling at approximately the same speed as she was. As a result she was unable to move into the middle lane for the purpose of effecting the right hand turn which she wished to make when she arrived at Albert Parade. The defendant says that her progress in the kerbside lane when she was travelling north was also impeded by the presence of a parked car. She therefore slowed down, waited for the vehicles on her outside to pass then having checked that there was nothing coming behind her put on her indicator and moved to the outside lane. She then