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. Grounds 2 and 5 argue that the finding of negligence was against the evidence and that the apportionment of one third by way of contributory negligence was inadequate. For the reasons I have given, the finding of negligence was clearly available and correctly made. Although the appellant contends for a finding of fifty percent contributory negligence on the part of the respondent, in my opinion the finding made by the trial judge was in the area of his discretion. The primary 2 UNREPORTED JUDGMENTS responsibility for the accident was the failure of the appellant to keep a proper look out whilst turning across oncoming traffic. These grounds also fail. Ground 6 relates to the awarding by the trial judge of interest. S73(4)(A)(), the Motor Traffic Act, prohibits the Court from ordering payment of interest unless "Information that would enable a proper assessment of the plaintiffs claim has been given to the defendant and the defendant has had a reasonable opportunity to make an offer of settlement (where it would be appropriate to do so) in respect of the plaintiffs full entitlement to all damages of any kind but has not made such an offer." $$p Judge McLachlan, who suggested an appeal regarding the interpretation of s73(4), said "For my part I believe an offer should have been made, even a relatively small one." His Honour found that the plaintiff had given to the defendant adequate notice that he was struck by the defendant's turning vehicle emphasising that ample notice was given that the defendant had "cut the corner' prior to the collision. In those circumstances, although his Honour was unsure regarding the construction of the section, Judge McLachlan found that having regard to the seriousness of the injuries an offer ought to have been made. Thus interest was awarded. It was argued that in the exercise of the statutory discretion, an irrelevant matter, namely the cutting of the corner, had been taken into account. I do not think that ground succeeds. The trial judge's reference to the cutting of the corner is to be understood as failing to make a right hand term with safety. That was not an irrelevant factor. In my opinion the appeal should be dismissed with costs. Clarke JA I agree with the order proposed by Mr Justice Cole and subject to one matter with his reasons. In my opinion, there is considerable force in the appellant's submissions that his Honour erroneously found that the fault of the appellant by the cutting of the corner more severely than the appellant was prepared to admit. My understanding of the judgment and the supplementary judgment is that it was on this basis that his Honour found the appellant negligent. I think therefore that there is considerable force in the argument that the reasoning leading to the finding of negligence in the defendant was flawed. However there are other factors in the case, identified by Mr King in his argument, which make it perfectly plain that the finding of negligence was the proper one to bring in in the circumstances. Although the respondent was riding the motor cycle without any lights on, he was doing so in a well lit area of the roadway. He was visible to the following vehicle and for reasons which were never disclosed, the appellant simply failed to see him before embarking on his right hand turn. In those circumstances I would reach the conclusion that the appeal on negligence must fail as also must the appeal on the other two grounds fail. Sheller JA I agree that the appeal should be dismissed. I agree what has been said by the presiding Judge and I agree with the matters that were set out in the judgment of Mr Justice Cole indicating clearly in this case there was negligence that there was no reason to interfere with the assessment of contributory negligence and that his Honour's order made under the Motor Accidents Act in regard to interest was justified. I my opinion the appeal should be dismissed with costs. Clarke JA: The order of the Court is that the appeal is dismissed with costs. Appeal dismissed with costs. URJ MIDGLEY v SHAH (Sheller JA) Counsel for the Appellant: L King SC Solicitors for the Appellant: Henry Davis York Counsel for the Respondent: JD Hislop QC and RP McLoughlin Solicitors for the Respondent: Hunt and Hunt