KEIGHRAN v FLETCHER [1994] NSWCA 161

KEIGHRAN v FLETCHER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER and HANDLEY JJA 16 August 1994 , 16 August 1994 [1994] NSWCA 161

MOTOR VEHICLE ACCIDENT — NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — CHALLENGE TO JUDGE'S FINDING ON WITNESS EVIDENCE — AUSTRALIAN POSTAL COMMISSION v ABALOS (1990-91)171 CLR 167.

FACTS:

The appellant appealed from findings of Grogan DCJ against him as to the contributory negligence of the respondent in allegedly failing to look to her right and swerving before the collision.

HELD:

(1) The decision of Grogan DCJ based on a finding that he believed one witness and not another prevents any appellate court from overturning that decision.

ORDERS: (1) Appeal dismissed with costs.

Meagher JA The plaintiff, Mrs Fletcher, was, on 25 November 1989, driving on the Pacific Highway and wanted to make a right hand turn at Wharf Road, John's River. She knew the intersection well. She proceeded to make such a turn, activating her right hand indicator. Meanwhile the defendant, Mr Keighran, who was driving his car in the same northerly direction behind her, growing impatient with the sluggishness of the traffic, decided to go out into the south-bound lane and jump a few cars ahead doing a speed of 100 kilometres an hour on his own story. In executing this manoeuvre he drove straight into Mrs Fletcher's car at a time when she was in the process of crossing the south-bound lane of the highway into Wharf Road. When Mr Keighran saw Mrs Fletcher he made no effort to stop. He did not even apply his brake. He did not steer his vehicle so as to avoid the collision. All he did was condescend to take his foot off the accelerator and flash his headlights; nothing more.

Not surprisingly on those facts Grogan DCJ found for the plaintiff. In so doing he believed the plaintiff and disbelieved the defendant. He also disbelieved a witness to the accident.