THE GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v MORTIMER [1994] NSWCA 114

THE GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v MORTIMER

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, HANDLEY and SHELLER JJA

8 March 1994, 6 April 1994

APPEAL FROM DISTRICT COURT — Collision at intersection crossing Great Western Highway — Duty of driver to obey traffic rules — Failure to give way to vehicle from right — Crossing when vision to right not clear — Driving round back of truck turning to left off Highway — Both drivers negligent — Apportionment: Plaintiff 80 per cent; Defendant 20 per cent.

APPORTIONMENT — Principles on which apportionment made.

ALLEGATIONS OF JUDICIAL BIAS — Duty of counsel making allegation to satisfy self that adequate grounds for making allegation.

ORDERS

1. Appeal upheld with costs.

2. Judgment below set aside.

3. In lieu substitute verdict for respondent for $30,060.80 and judgment for $6012.16 to date from the date of the original judgment.

4. Respondent to have the costs of the trial.

5. Respondent to pay the appellant's costs of the appeal to this Court and, if entitled, have a certificate under the Suitors' Fund Act.

Mahoney JA On 30 November 1986 a collision occurred between vehicles driven bythe plaintiff Michelle Lorraine Mortimer and Lisa Marie Moricz, for whom the Government Insurance Office of New South Wales is responsible. The plaintiff sued the defendant for damages for the injuries which she suffered in the collision.

On 2 October 1991, his Honour Judge Nield held that both drivers were negligent, apportioned responsibility for what occurred equally between them, and awarded damages to the plaintiff accordingly.

The defendant has appealed to this Court against his Honour's judgment. Mr Tonner, for the defendant, has pursued four grounds: that Mrs Moricz was not negligent; that if she was her responsibility was less than fifty per cent; that the