GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v MONTEFIORE [1995] NSWCA 180

GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v MONTEFIORE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, HANDLEY and POWELL JJA 2 May 1995, 2 May 1995 [1995] NSWCA 180

CONTRIBUTORY NEGLIGENCE — APPORTIONMENT — APPEAL — NO QUESTION OF PRINCIPLE.

The plaintiff had nearly completed a right hand turn when her car was hit in the rear nearside by the defendant's insured car - the plaintiff's visibility of approaching traffic was only 35-40 feet - the Judge accepted she had looked before turning and that there had then been nothing in sight and found that the defendant's insured driver, with the same visibility, had not kept a proper lookout and had been driving at an excessive speed - the Judge reduced the plaintiff's damages by 20 per cent for contributory negligence. The defendant appealed seeking a higher apportionment. - Held: The predominant cause of the accident was the excessive speed and failure to keep a proper lookout by the appellant's

insured driver, and there was no error in the trial Judge's exercise of discretion. Pennington v Norris (1956) 96 CLR 10 applied.

Handley JA The appeal in this case is by the defendant from a judgment of his Honour Judge Patten who reduced the plaintiff's damages of $239,108.05 by 20 per cent because of her contributory negligence.

The sole ground of appeal challenged the apportionment of 20%. Mr Elkaim, who has appeared for the appellant, in a concise argument has submitted that the apportionment to the plaintiff was inadequate and, in substance, outside the range of a sound exercise of the discretion of the trial judge under the statute.

On the day in question, 13 June 1986, the plaintiff was making a right-hand turn from Mimosa Road, Greenfield Park, into Cheyenne Road which formed a T-intersection with it. The accident occurred at about 8.30 in the morning when the plaintiff was on the way to drop her children at school before proceeding to work. The T-intersection is adjacent to a high school and the plaintiff stopped prior to making her right-hand turn. There was a line of vehicles facing her who wished to turn right and enter the high school on the plaintiff's left. After having stopped and looked ahead the plaintiff proceeded to tum right into Cheyenne Road. She had practically completed the turn when the defendant's insured vehicle collided with the rear nearside of her car.