URBAN TRANSPORT AUTHORITY v DE SOUSA [1993] NSWCA 277

URBAN TRANSPORT AUTHORITY v DE SOUSA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER and CRIPPS JJA 22 June 1993, 22 June 1993

[1993] NSWCA 277

Negligence — running down case — contributory negligence — apportionment.

ORDERS

1. Appeal and cross appeal dismissed.

2. Appellant to pay two thirds of the respondent's costs of the appeal. 3. No order as to costs in the cross appeal.

Cripps JA On 16 February 1982, at about 12.30 pm, Mr Manuel Francisco Alho wasseriously injured when he was struck by a bus owned by the Urban Transit Authority and driven by Gladys Pearce. He died on 18 August 1983, but not as a result of the injuries he received in the accident.

Maria De Sousa, as the administratrix of his estate, sued the Authority and the driver in the Supreme Court claiming damages. On 17 April 1991 Master Greenwood awarded her $81,315. He found negligence had been established and he assessed damages in the sum of $162,630, which he then reduced by 50%, holding that Mr Alho was 50% to blame.

The judgment was entered for only one defendant, the first defendant, who appealed on a number of grounds, three of which were abandoned.

It maintains, however, that Master Greenwood erred in finding negligence in apportioning blame, on the assumption negligence was made out, by Mr Alho at only 50%.

The facts of the litigation were not complicated. The deceased was struck by a bus when he was in the centre lane of the west-bound carriageway of Oxford Street at a point about 100 feet west of the intersection of Riley Street and Oxford Street. The bus was owned by the appellant and driven by Gladys Pearce. The point of impact was established by the police officer at about 15 feet north of the southern kerb of Oxford Street. That is, on the southern edge of the centre lane of the carriageway, that being the lane in which the bus was travelling as it passed through Riley Street.