RADOV v SULLIVAN [1996] NSWCA 443

RADOV v SULLIVAN

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA, HANDLEY JA and COLE JA 27 June 1996

[1996] NSWCA 443

MOTOR VEHICLE ACCIDENTS — contributory negligence — encouragement of recklessness — failure to wear seatbelt — driver affected by alcohol — plaintiff's knowledge.

On the morning of 16 October 1988 the plaintiff was a front seat passenger in a vehicle that crashed into a tree and left him a paraplegic. The vehicle was owned by the plaintiff but was being driven by his friend, the defendant. The plaintiff had recently re-registered the vehicle with four seatbelts but had removed three of them to replace them. The two had been drinking heavily the previous evening and according to expert evidence the defendant's blood alcohol level at the time of the accident was in the range of.14 to.166. The trial judge found the plaintiff had been guilty of contributory negligence to the extent of 25% for being without a seatbelt in a car driven by an alcohol-affected driver whom he had encouraged in "mucking about". The the trial judge exercised his discretion under SCR Pt 36 r 13A to allow oral evidence as to the blood alcohol level of the defendant although no report had been served. No application was made by the plaintiff for an adjournment to investigate this evidence. The trial judge found that the appellant had been in breach of reg 110 F(2A) of the Motor Traffic Regulations which made it an offence not to wear a properly adjusted and secured seatbelt in a seat that had been fitted with a seatbelt. He also found that the plaintiff had been in breach of reg 92(1) and Sch F read with Sch F para 68A of the Regulations which prohibits a vehicle being driven on a public street unless fitted with seatbelts.

HELD: dismissing the appeal: (1) The judge's decision to allow oral evidence despite SCR Pt 36 r 13A involved the exercise of a judicial discretion in a matter of practice and procedure; (2) No error was established in the exercise of the discretion; (3) Any prejudice to the plaintiff could have been met by protective orders but none were asked for; (4) The judge was in error in holding that reg 110 F(2a) applied when it was physically impossible at the time for the plaintiff to wear a belt properly adjusted and secured; (5) He was correct in holding that reg 92 (1) and Sch F read with Sch F para 68A was breached and that the plaintiff as the owner of the vehicle must accept responsibility for its breach; (6) The plaintiffs failure to retain and wear a seatbelt was contributory negligence; (7) The judge was entitled to find that the driver's ability was impaired and that the plaintiff ought to have known this; (8) There were no grounds for interfering with the trial judge's apportionment.