COHEN v REID [1996] NSWCA 110

COHEN v REID

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

HANDLEY, SHELLER and COLE JJA 18 June 1996 [1996] NSWCA 110

NEGLIGENCE — personal injury — motor vehicle accident — duty of care — credibility of witness

Sheller JA. This is an appeal by the plaintiff Ms Marie Cohen from a decision of his Honour Judge Craigie QC of 16 March 1994. The appellant claimed to recover damages from the respondent, Ms Carol Reid, for injuries suffered at approximately 8.30 am on 27 March 1990 in the grounds of Redfern Public School. The appellant averred that a vehicle the respondent was driving into a parking space in the school grounds collided with the appellant's right hand. Seven particulars of negligence were given. In his judgment, Judge Craigie dealt with each of those grounds and found none of them had been made out. His Honour held that there should be a verdict for the respondent/defendant. He said that he had not been satisfied on the balance ofprobabilities of the existence of any act of negligence on the part of the defendant in her duty of care to the plaintiff in the use of her motor vehicle.

Two different accounts were given of the incident which gave rise to this claim by the only people who saw it and gave evidence; the plaintiff and the defendant. The plaintiff's version was set out in his Honour's judgment at p 9:

There was evidence given by the plaintiff that she was in the yard of the playground of the Redfern Public School at about twenty past eight on 27 March 1990. She was with Damien Mains and Damien had a black eye which she thought had just happened. She examined Damien's black eye. She had a bag and she put and rested it on her leg. She had a shoulder bag on the left side. Having examined Damien's eye, she saw the front of the car about ten feet away. She recognised the driver as Carol Reid, the defendant, she being a teacher at the school. Before she saw the car, she said she did not hear anything. She bent down and grabbed her bag. The car was still moving. She felt then her hand going around. As the car came down towards her, she felt her hand turned, and this very description I have already recited (hand twisted), and eventually she said that the car and her hand collided. Then she saw the car parked in the parking area. The driver got out and went inside and she put her bag in her left hand, and she did not know where Damien went to.