LAKEWOOD ELECTRICS PTY LTD and ANOR v CAMPANARO [1995] NSWCA 252

LAKEWOOD ELECTRICS PTY LTD and ANOR v CAMPANARO

SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

KIRBY P, MAHONEY and POWELL JA 24 March 1995, 24 March 1995 [1995] NSWCA 252

NEGLIGENCE — contributory negligence motor vehicle accident — driver had clear vision on clear day — full opportunity to stop or swerve and avoid collision with pedestrian crossing intersection — primary judge dismissed defence of contributory negligence — ,held: on version of facts accepted, no error was shown — appeal dismissed.

NEGLIGENCE — contributory negligence — motor vehicle accident — collision of sports car with pedestrian crossing intersection — clear day and long view — sports car had time to stop or swerve and avoid collision — primary judge (Grove, J.) accepts evidence of witness who sees collision — rejects version of motorist that pedestrian rushed into his path — on appeal — held: (dismissing the appeal) (Kirby, P, Mahoney, JA and Powell, JA concurring): 1. The onus was upon the motorist at trial to establish the defence of contributory negligence and upon him in the appeal to establish that the primary judge was wrong within the version of events which he accepted; 2. Upon that version, notwithstanding the duty of the pedestrian to take simple precautions to protect his own safety, it was not established that the judge erred in dismissing the defence of contributory negligence. Upon the version of events accepted by the Judge, the motorist was the sole cause of the collision: Stewart v Carnell (1984) 2 MVR 147 (NSW, CA), 151 distinguished; Turner v State of New South Wales (1982) 42 ALR 669 (HC) applied.

ORDERS Appeal dismissed with costs.

Kirby P The Court has before it an appeal from a judgment entered by Grove, J in the Common Law Division of the Supreme Court. His Honour directed judgment in favour of Mr Rolando Campanaro (the respondent) in the sum of $400,000.