STEPASUIK v NRMA INSURANCE LTD [1996] NSWCA 503

STEPASUIK v NRMA INSURANCE LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY AP, COLE JA and Simos AJA 18 September 1996, 18 September 1996 [1996] NSWCA 503

NEGLIGENCE — no question of principle.

Cole JA On 21 September 1993 between 5.50 pm and 6.10 pm the appellant who was riding his bicycle on the footpath in Orange Grove Road, Cabramatta, collided with the rear passenger side rear arch of the motor vehicle being driven by a Mr Gray who was reversing his vehicle out of his driveway at approximately 5 kilometres per hour.

Mr Gray being deceased a statement by him to the investigating police officer was admitted into evidence. It disclosed that he had looked in the direction of the appellant but had not seen him before commencing to back out of his driveway. The appellant sued Mr Gray alleging he was negligent in failing to keep a proper look out, and in failure to stop or slow down so as to avoid collision, and failing to sound the vehicle's horn before reversing out of the driveway.

The judge found that the accident was entirely the responsibility of the appellant who was wrongly riding a bicycle on a footpath down a slope without lights, it being after dark, and who himself was not keeping a proper look out for the defendant who was in the reversing vehicle. The trial judge rejected the plaintiff's account that he was travelling slowly and looking ahead.

There was a clear conflict of fact to be decided by the trial judge. There was evidence available to support her findings that the accident was the entire responsibility of the appellant.

On appeal it was argued that her Honour was in error in finding that the accident was the entire responsibility of the appellant, that she erred in failing to have regard to Mr Gray's statement and that she erred in failing to find Mr Gray negligent. None of those grounds have been made out.