URBAN TRANSIT AUTHORITY OF NSW v HAMMOND [1993] NSWCA 276

URBAN TRANSIT AUTHORITY OF NSW v HAMMOND SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and Cripps JJA 16 June 1993, 16 June 1993

[1993] NSWCA 276

NEGLIGENCE — contributory negligence — bus hits plaintiff on pedestrian crossin g — inconsistencies within and between evidence of witnesses — trial judge prefers plaintiff's account in finding driver negligent and absence of contributory negligence — whether error in factual findings in dealing with varied accounts — held: no basis for interfering with judge's findings as entitled on evidence to make conclusions he did.

Priestley JA Mr Sternberg, counsel for the appellants in this matter, has madeso me careful and detailed submissions, in the course of which he has analysed the evidence of various witnesses in this case. The case is one in which his client s, the Urban Transit Authority of New South Wales and their bus driver employee, appeal against a District Court judgment against them of $33,044. This was pronounced by his Honour Judge Hosking on 11 November 1991.

The plaintiff in the case was a man in his sixties who had been hit in a pedestrian crossing by a bus on 6 June 1986, and who claimed the Authority and its driver were liable to him for his damages as a result. The Authority and the driver have appealed against the judge's findings that the driver had been negligent and that the plaintiff was not guilty of contributory negligence. No question has been raised in the appeal about the amount awarded as damages.

The evidence at the trial about negligence came from four witnesses - the plaintiff; Mr Russell, who was standing next to the plaintiff just before he wa s hit; Mrs Deiter, who was a passenger on the bus; and Mr Boscolo, the bus driver. There was also in evidence a statement by Mr W Harvey made on 3 April 1987. He was a friend of the plaintiff, who had been with the plaintiff when he was hit but who had died before the trial.