CIPRI v GIO OF NSW [1996] NSWCA 102

CIPRI v GIO OF NSW

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

HANDLEY JA, SHELLER JA and COLE JA 18 June 1996

[1996] NSWCA 102 MOTOR VEHICLE ACCIDENT — liability — contributory negligence.

On 30 January 1987 the plaintiff suffered a motor vehicle accident which the trial judge found was a result of the plaintiff being misled by the appearance of a green arrow but actually entering an intersection against a red light. The defendant had entered the intersection on a green light while travelling around sixty kilometres an hour. Another driver going in the same direction and being overtaken by the defendant had braked though the defendant had thought that this was to enable a turn. Counsel for the plaintiff appealed contending that there was contributory negligence on the

Handley JA. This is an appeal by a plaintiff from a decision of Twigg QC DCJ who heard the plaintiff's claim arising out of motor vehicle accident which occurred on 30 January 1987.

The accident occurred at the intersection of Brennan and Catherine Streets, Lilyfield. The plaintiff was travelling south in Catherine Street and approaching the intersection with Brennan Street. This intersection was controlled by lights. There was a dispute at the trial as to the situation with regard to the lights at the time of the collision but the trial judge found that the defendant's insured driver was travelling in the intersection with a green light in his favour, and that the plaintiff had entered the intersection againstdriven in excess of thirty kilometres an hour so Mr Flowers had been travelling at that low speed along Brennan Street.

When Brennan Street became a two-lane street for traffic travelling north, Mr Bell moved out from behind Mr Flowers and attempted to pass him; accelerating up to sixty kilometres an hour or thereabouts. However, he was not proceeding above the speed limit. There was apparently an open traffic lane in front of him and he had the green light in his favour. In these circumstances, his speed alone, in my judgment, cannot constitute any proper basis for a finding of negligence.