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. The defendant's insured vehicle was proceeding north in the second kerbside lane in Mimosa Road, that is, in the opposite direction to that in which the plaintiff had approached the T-intersection. There was evidence before the trial judge to the effect that the defendant's insured driver was travelling at at least forty kilometres an hour and if the P4 accident report were to be accepted in full, that she was travelling at fifty kilometres an hour. Because of the line of vehicles waiting to make a right-hand turn into the high school which was facing the plaintiff, her visibility in the direction from which the defendant insured's vehicle was approaching was limited to some thirty-five to forty feet. However, she said she looked before 2 UNREPORTED JUDGMENTS commencing to make her right-hand turn and at that stage there was nothing in sight, and the Judge accepted this evidence. It follows that the visibility of the driver of the defendant's insured vehicle approaching from the south was also limited in the same way. Nevertheless, as the Judge found, the defendant's insured driver was proceeding without keeping a proper lookout and at an excessive speed in all the circumstances. Mr Elkaim properly emphasised the high duty of care which rests on a driver making a right-hand turn across a line of traffic. This part of his submissions may readily be accepted. In many cases the high degree of care resting on a driver in the position of the plaintiff could warrant a significantly higher apportionment than that made by the trial judge in the present case. Nevertheless in my opinion the significant fact for present purposes is, that the Judge found that the point of impact was towards the rear nearside of the plaintiff's car. He said that at the time of impact about three-quarters of the length of the plaintiff's car was actually in Cheyenne Road and hence out of danger. Unless the defendant's insured was driving right on the edge of the gravel lane in Mimosa Road, one can deduce that the accident must have happened at the very rear of the plaintiff's vehicle. This means that the plaintiff was able to practically complete her right-hand turn before the collision occurred. It also means that having looked ahead to the extent to which she was able before commencing her turn, she would thereafter naturally be looking ahead in Cheyenne Road to make sure that there was no source of danger ahead. The defendant's insured, however, driving north in Mimosa Road, would have had a clear view of the turning vehicle ahead and had she been driving at an appropriately modified speed and keeping a proper lookout, there is every reason to conclude that she would have been able to avoid colliding with the rear of the plaintiffs vehicle. This analysis based on the Judge's findings about the position of the plaintiff's vehicle at the time of impact and the location of the damage, in my view amply supported his Honour's assessment of the plaintiff's share of responsibility as being no more than 20%. It seems to me that overwhelmingly the predominant cause of this accident was the excessive speed and the failure by the appellant's insured driver to keep a proper lookout as she proceeded towards the T-intersection. The High Court has cautioned against too ready interference by appellant courts with apportionments of responsibility by trial judges - Pennington v Norris (1956) 96 CLR 10. I have not been persuaded that his Honour erred in the exercise of his discretionary judgment in arriving at his assessment of responsibility. I would, therefore, propose the appeal be dismissed with costs. Mr Elkaim has presented a precise argument and said everything that could possibly be said on behalf of the appellant but has failed to persuade me that there is any appellable error. Kirby P I agree. Powell JA I also agree. Kirby P: The order of the Court, accordingly, is that the appeal is dismissed. The appellant must pay the respondent's costs. Counsel for the appellant: M ELKAIM \ROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v MONTEFIORE (Powel JA) Solicitors for the appellant: GM MEADOWS - GIO LEGAL SECTION Counsel for the respondent: CP LOCKE Solicitors for the respondent: DAVID VELLELEY