MIDGLEY v SHAH [1996] NSWCA 364

MIDGLEY v SHAH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, SHELLER and COLE JJA

25 June 1996, 25 June 1996

[1996] NSWCA 364

NEGLIGENCE — no question of principle.

Cole JA Judge McLachlan found that on 13 May 1991 at about 8.55pm, the appellant was driving his motor vehicle in a westerly direction along Lyons Road West at Five Dock. He commenced a turn to his right intending to turn into Friend Avenue. The intersection was well lit, the appellant cut the corner in his turn thus crossing double unbroken lines before reaching the intersection with Friend Avenue. The trial judge found he cut the corner by more than the metre which he admitted to. Whilst making the turn into Friend Avenue, he collided with a motorcycle which the trial judge found was being ridden by the respondent without light. On those findings, Judge McLachlan found the appellant was negligent but that the plaintiff was guilty of contributory negligence to the extent of one third.

The appellant has raised a number of grounds of appeal. Grounds 1, 3 and 4 contend that the trial judge did not give any or any adequate reasons to support the finding of negligence by the appellant. In the course of his reasons, the trial judge said "The evidence as to damage on the nearside of the car does, however, persuade me that the defendant cut the corner to a greater degree than he is prepared to admit but I find that the impact took place on the plaintiffs correct side of the road. These findings, in my assessment. create the position that the defendant was negligent."

The appellant argues that there is no logical connection between damage to the nearside of his vehicle and negligence nor that cutting the corner had a causative relationship with the accident. In my opinion, the appellant seeks to read the judgment too strictly. Prior to the passage quoted, the trial judge had noted counsel's submissions which accurately recorded the fact that the defendant had conceded that he did not see the plaintiff until a split second before the accident. That, coupled with the finding that the accident occurred on the respondent's correct side of the road, in circumstances where the intersection was admittedly well lit, indicated that the appellant was not keeping a proper look out and further that he was not making a right hand turn at an intersection with safety so as to avoid others on that intersection. That is so notwithstanding the fact that the plaintiff was dressed in dark clothing a riding a small unlit motor cycle. Those grounds accordingly fail.