CARCELLER v ANDREWS and ANOR [1996] NSWCA 91

CARCELLER v ANDREWS and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY and SHELLER JJA 17 June 1996, 17 June 1996

[1996] NSWCA 91

Negligent driving — collision with police vehicle — question whether siren and lights were activated — reg80 of Motor Traffic Act

Clarke JA This is an appeal concerning an accident which occurred as long ago as 9 July 1979.

The appellant was the plaintiff in the District Court claiming damages in respect of the allegedly negligent driving of the respondent.

According to the appellant, that negligence lead to a collision between a vehicle driven by the appellant and a vehicle driven by the respondent at the intersection of Lamb Street and Elizabeth Street, Ashfield, in the early hours of the morning.

His Honour Judge McDevitt, at the conclusion of a lengthy trial, accepted the evidence of the respondent, and in those circumstances concluded that the appellant had failed to make out his case.

There were a number of issues between the parties, but once the trial Judge accepted the respondent's evidence, as it seems to me he did, the issues became somewhat confined. As I read the Judgment under appeal, counsel for the appellant developed submissions at the trial on the assumption that the respondent's evidence was accepted contending that the conduct of the respondent, in the light of Reg80(1), Reg80(2), and Reg132 of the Regulations under the Motor Traffic Act was negligent.

It is common ground that that submission was to an extent misconceived, in that the Regulations relied upon by the appellant were not in force at the relevant date. There was in force another Reg80 to which I will refer in a moment.

What does emerge is that the substantial attack made at the trial based upon the Regulations, and rejected by His Honour, cannot be supported on the appeal.