GORTON v ESSEX [1996] NSWCA 223

GORTON v ESSEX

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

HANDLEY, SHELLER and COLE JJA 28 June 1996

[1996] NSWCA 223

PERSONAL INJURY — negligence — duty of care — Nagle v Rottnest Island Authority (1993) 177 CLR 423 disting.

Sheller JA. The plaintiff, Derrick John Gorton appeals from a judgment of Studdert J delivered on 6 June 1994. The proceedings arose out of a motor vehicle accident which occurred on the Pacific Highway at Glenugie near Grafton on 2 November 1988 in the early afternoon.

The plaintiff was riding his motor cycle when it collided with a pantechnicon. The plaintiff suffered very severe injuries. At the time he was aged twenty-three years. He brought the proceedings against the driver of the pantechnicon, Wayne David Essex. Studdert J tried the issue of liability separately. At somestage there were two other defendants to the proceedings but leave was granted to discontinue the proceedings against them.

His Honour found that the point of impact was 55.7 metres west of the T-intersection of Wooli Road and the Pacific Highway. This intersection was on the northern side of the highway. The defendant gave evidence that he was driving his pantechnicon on Wooli Road towards the intersection. He stopped at the corner and looked in both directions before deciding it was safe to proceed out and turn to his right onto the Pacific Highway. He said that he observed a semi-trailer which was a considerable distance to his right and had not gone onto the Glenugie Creek Bridge which was to the west of the intersection. His Honour found that it was reasonably safe for the defendant to proceed out onto the highway and into the turn when he made the decision to do so. After turning right onto the Pacific Highway, the defendant, according to his evidence, had just started to change into third gear, had reached a speed of 40 to 45 kilometres per hour and was travelling along the highway to the point 55.7 metres from the intersection. The semi-trailer was travelling in the opposite direction at a speed close to 100 kilometres per hour. The driver of the semi-trailer had not slowed. His Honour inferred that the driver did not perceive any risk of there being a collision with the pantechnicon when it crossed the highway. When the defendant was three-quarters passed the semitrailer, the plaintiffs motor cycle appeared in front of his pantechnicon and thecollision occurred. At the point of impact the highway was 6.9 metres bitumen edge to bitumen edge.