EDIS v CHOUSEAS [1996] NSWCA 167

EDIS v CHOUSEAS

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE, HANDLEY and COLE JJA 26 September 1996 [1996] NSWCA 167

MOTOR VEHICLE ACCIDENTS — apportionment of liability — finding of fact — determination of negligence.

The plaintiff who was riding a motor cycle collided at a T-intersection with the defendant, driving a motor vehicle, who was turning right. The intersection was governed by traffic lights and both claimed to have the green light in their favour. The plaintiff had given evidence that when he saw the defendant brake he believed he would be able to pass in front of her. The defendant said she had a green arrow in her favour and believed the plaintiff would obey the red light facing him. The trial Judge found that the defendant had the green arrow in her favour. Despite this finding, he apportioned 85% of the responsibility for the accident to the defendant because when she slowed down she misled the plaintiff into thinking that she was allowing him to pass in front of her. The defendant appealed. The plaintiff submitted that a finding of negligence was open against the defendant because she turned knowing that a collision was inevitable.

HELD, allowing the appeal: (1) The plaintiff's evidence that he was misled depended on his evidence that he had the green light in his favour. This was negatived by the Judge's finding that the plaintiff entered the intersection against a red light; (2) There was no evidence to sustain a finding that the defendant knew that in making her right hand turn with the green arrow in her favour an accident would result; (3) The defendant had not been negligent.

Handley JA. This appeal arises out of the motor vehicle accident which occurred on 10 December 1990 about 7.00 am at the T-intersection between Coward Street and Bourke Street Mascot. The plaintiff riding a motor cycle was travelling in Coward Street in a westerly direction. The defendant driving a motor vehicle was travelling in an easterly direction and intended to make a right hand turn into Bourke Street.