THOMAS v PHANEKHAM [1997] NSWCA 315

THOMAS v PHANEKHAM

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

POWELL, COLE and BEAZLEY JJA 8 October 1996, 8 October 1997 [1997] NSWCA 315

TRIAL judge's finding of contributory negligence upheld, as was trial judge's awarding of damages — trial judge's award of interest cannot stand as the provisions of s73(4) Motor Accidents Act were not satisfied.

Cole JA The appellant and the respondent were involved in a motor vehicle accident at about 9.10am on 26 July 1991 in Narellan Road, Campbelltown. The appellant was driving in a westerly direction approaching the entrance to the TAFE College. Narellan Road there comprised three lanes with the kerbside lane being a turning lane into the TAFE entrance. At the TAFE entrance was a give-way sign requiring vehicles emerging from the TAFE College to give way to vehicles approaching from the east. The respondent's vehicle was stopped at the give-way sign.

A number of vehicles ahead of the appellant crossed into the turning lane preparatory to turning into the TAFE College. The appellant then accelerated to a speed found to be about 80 kilometres per hour as he approached the TAFE entrance.

He was aware of the entrance, and of the fact that vehicles emerged from that entrance to cross the western carriageway turning right to travel east towards Campbelltown.

Judge Holt found that the appellant was negligent in that he did not proceed with adequate caution or at an appropriate speed approaching the TAFE entrance. His Honour also found that the respondent was guilty of contributory negligence in that he failed to give way to a vehicle approaching from his right and proceeded into Narellan Road without adequately ensuring that there were no vehicles approaching from his right. Judge Holt attributed 66% of blame for the accident to the respondent.