EL ABED v GIO AUSTRALIA LTD [1996] NSWCA 5

EL ABED v GIO AUSTRALIA LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY and COLE JJA

27 June 1996, 27 June 1996

[1996] NSWCA 5

NEGLIGENCE — no question of principle.

Cole JA The appellant has contended that Judge Bell was in error in finding him guilty of contributory negligence to the extent of fifty per cent. He was involved in an accident at about 9pm on 26 July 1985 when his motor vehicle collided with a motor vehicle driven by Miss Dambruscus.

Miss Dambruscus was travelling in a westerly direction along Liverpool Road, Ashfield. She made a turn to her right into Elizabeth Street. The trial Judge found that as she was approaching the intersection with Elizabeth Street the traffic lights changed from green to amber. She observed two vehicles travelling in an easterly direction in Liverpool Street approaching the intersection of Elizabeth Street. Those vehicles were slowing and the Judge accepted her evidence that they came to a stop at the traffic lights. Accordingly she commenced her turn to the right into Elizabeth Street, reaching a point approximately two thirds of the way across the mouth of the street. The near-side front portion of her car struck the motor vehicle being driven by the appellant which overtook the two stationary vehicles which had been heading east in Liverpool Street. The trial Judge found Miss Dambruscus to be negligent, however, he found the appellant guilty of contributory negligence to the extent of fifty per cent.

The trial Judge found that the appellant must either have passed between the two stationary vehicles as they slowed down, passing to the near side of the vehicle in the lane adjacent to the kerb or made a third line of traffic on the off-side of the vehicle in lane number 2, in the latter two instances, swinging back towards the centre of the roadway, where the collision occurred. The first of the three alternatives was found to be the most probable.