MANNING v McPHILLIP and ANOR [1995] NSWCA 270

MANNING v McPHILLIP

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, SHELLER and COLE JJA 16 November 1995

[1995] NSWCA 270 Kirby P I will ask Cole JA to give the first judgment.

Cole JA On 22 September 1989 there was a motor vehicle accident in which a vehicle owned by the respondent William Arthur McPhillips and driven by the second respondent Karen Louis McPhillips collided with a vehicle being driven by Carolyn Lindsay Manning, the appellant. Mr McPhillips sued for property damage to his motor vehicle. Miss Manning, in separate proceedings, sued Mr and Mrs McPhillips for personal injuries. In the initial property proceedings Mrs McPhillips was joined as third party. Ultimately the decision which Barbour DCJ had to make was whether Miss Manning or Mrs McPhillips was negligent, and whether the other was guilty of contributory negligence. Barbour CJ found that Miss Manning was negligent and that Mrs McPhillips had not been guilty of contributory negligence. He accordingly entered judgment in favour of Mr McPhillips for $25,375 property damage and found a verdict against Miss Manning in her claim for personal injuries. Those findings are challenged by this appeal.

The motor vehicle collision occurred on the Friday Hut Road, Booklet near Ballina. The road upon which the collision occurred was a single lane strip road with gravel verges. It was a common ground that the bitumen surface of the strip road was not sufficiently wide for two vehicles to pass. It was also common ground that the appropriate course for vehicles approaching each other was to each move to their left so that each retained the driver's side wheels on the bitumen but each would have the passenger side wheels on the gravel verge.

The vehicles being driven by Mr McPhillips and Miss Manning approached each other. Mrs McPhillips' case was that she was travelling at something less than 60 kilometres per hour and saw the other vehicle approaching. She was driving up a slight to moderate incline and changed down to third gear. As she came around a curve to the left she saw the other vehicle approximately 200 yards away. She moved to the left taking her two rear side wheels off the bitumen and on to the gravel verge. She went as far as possible to the left until the wheels of her vehicle were within a few inches of an embankment on the left of the curve. Her evidence was that the approaching vehicle did not itself move to the left but maintained its course down the centre of the bitumen with all four wheels on the bitumen. Ultimately Mrs McPhillips realised that the other vehicle was not going to move to its left so that a collision was inevitable. In the "agony of the moment", she swerved sharply to the right endeavouring to pass across in front of the oncoming vehicle to available space on the wider opposite verge, hoping to pass on the near side of the oncoming vehicle driven by Miss Manning. She was too late and the front driver's side of her vehicle struck the centre and passenger side of the oncoming vehicle.