PHUONG v BERGHOFER [1995] NSWCA 369

PHUONG v BERGHOFER

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, SHELLER and COLE JJA 14 November 1995, 22 November 1995

[1995] NSWCA 369 MOTOR VEHICLE ACCIDENT — no question of principle.

Priestley JA I agree with Sheller JA and Cole JA and the orders proposed by Cole JA.

Sheller JA The plaintiff, Vinh Phuong, appeals from a verdict entered in favour of the defendant, Brian Berghofer, by her Honour Judge Karpin on 9 April 1992.

At approximately 7.30 pm on 16 November 1982 the plaintiff was driving his motor vehicle in a westerly direction along Arthur Street, Lidcombe when it was struck on the plaintiff s side of the road by a vehicle the defendant was driving in the opposite easterly direction. As a result the plaintiff suffered injury. In her judgment her Honour was at pains to describe the facts as she found them and to deal with the various particulars of negligence the plaintiff pleaded. Her Honour concluded that the case was "one of those unfortunate cases in which blame can be laid at no one's door thus leaving an injured plaintiff without recourse to damages."

If a motor vehicle leaves its correct side of the road, as the defendant's did, and collides with an oncoming vehicle, the inference is open that the driver of the vehicle is guilty of negligence, in the absence of an explanation that the vehicle's departure from its correct side of the road was for reasons other than the defendant's negligence; Government Insurance Office of New South Wales v Fredrichberg (1968) 118 CLR 403 at 413 and 421. In the present case the explanation her Honour accepted was that at some point not far distant from the point of impact the defendant's car struck a "sheet of water" which the defendant, while driving, did not see and the defendant in consequence lost control. Her Honour found that the defendant was travelling at 20 kilometres per hour, a not unreasonable speed in all the circumstances. She found no evidence to support a contention that he was not making proper observation of the road and traffic conditions or that, if he had been travelling at a slower speed, the accident might not have occurred.