MOUNSEY v KYPRIOTIS [1992] NSWCA 164

MOUNSEY v KYPRIOTIS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, HANDLEY and SHELLER JJA 21 April 1992, 4 May 1992 [1992] NSWCA 164

APPEAL — FAILURE TO DISCHARGE ONUS TO PROVE NEGLIGENCE APPEAL — motor vehicle accident — plaintiff's proceedings dismissed upon his failure to discharge onus to prove defendant negligent — plaintiff argues insufficient justification for trial judge to reject vital aspects of plaintiff's evidence — Held: no mistake or deficiency in trial judge's reasons.

ORDERS Appeal dismissed with costs.

Priestley JA At a quarter to seven in the morning of Monday, 23 December 1985, Mr G Mounsey was riding his motor cycle to work when he had an accident in which he suffered serious injuries. In 1986 he commenced proceedings for damages in the Common Law Division of this court against Mr T Kypriotis claiming that it was the negligence of Mr Kypriotis which had caused the accident. The trial of the proceedings was before Abadee AJ in April 1990. On 1 May 1990 the judge delivered judgment dismissing the plaintiff's claim and entering judgment, with costs, for the defendant Mr Kypriotis. Although Abadee AJ dismissed the plaintiff's case it seemed to him desirable to assess damages in the event that his views on liability were subject to appeal. The figure he assessed was $261,776.95.

The plaintiff appealed. In the appeal the defendant agreed that the amount of damages assessed by the trial judge was appropriate and would not be contested. Counsel for the defendant made it clear however that in the event the defendant was found liable for the plaintiff's damages, the defendant would be contending that the plaintiff had been guilty of contributory negligence and that the amount of damages recoverable by the plaintiff should be reduced having regard to the plaintiffs share in the responsibility for the damage. In the appeal therefore, the court had first to consider whether there were any grounds for reversing the trial judge's decision on liability, and if so, whether the plaintiff had been guilty of contributory negligence.