MOATE v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1996] NSWCA 368

MOATE v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, HANDLEY and COLE JJA 2 July 1996, 2 July 1996

[1996] NSWCA 368

Cole JA Judge Coleman held that the appellant, a pedestrian, was guilty of contributory negligence of twenty percent when involved in an accident which occurred on 8 June 1987 at about 8pm when the appellant was crossing Coogee Bay Road, Coogee, in a northerly direction. The appellant passed the mid line of the carriageway of Coogee Bay Road when he was struck by a motor vehicle driven by a Ms Lillis, for whom the respondent is responsible, whilst she was reversing her vehicle to occupy a parking spot on the northern kerb of Coogee Bay Road.

There was conflict between the account of the accident given by the plaintiff and his witness and that given by Ms Lillis. Judge Coleman rejected the account given by the plaintiff and his witness Mr Butler, accepting Ms Lillis. Accordingly he found that Ms Lillis had moved forward about two car spaces to allow a parked vehicle to leave the parking spot and then had reversed at about five kilometres per hour to occupy that spot once the parked vehicle had left, in so doing she struck the appellant. Although she clearly was negligent the appellant was found to have contributed to the accident by failing to take reasonable care for his own safety because crossing the road he should have observed the stationary and then reversing vehicle of Ms Lillis. It would have been obvious that she was reversing to occupy the vacated space.

No attack has been mounted on the trial judges acceptance of Ms Lillis and rejection of the plaintiff and Mr Butler except that it was said that as the collision broke the rear window of Ms Lillis' vehicle the trial judge's finding regarding speed should be rejected. In reality that is to ask this Court to reverse the trial judges' finding of fact and acceptance of Ms Lillis. In my opinion no adequate reasons had been advanced to justify this Court taking such a course. Accordingly there is no basis for disturbing his Honour's finding of fact, nor is there any basis for disturbing his Honour's assessment of contributory negligence, see Southgate v Waterford!. Accordingly grounds one to three inclusive fail.