MCPHERSON v GIO OF NSW [1997] NSWCA 199

MCPHERSON v GIO OF NSW SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, BEAZLEY and STEIN JJA 16 April 1997, 16 April 1997

[1997] NSWCA 199

NEGLIGENCE — Motor Vehicle Collision — Failure to keep a proper lookout — Sibley v Kais (1967) 118 CLR 424 distinguished. APPEAL AND NEW TRIAL — Findings of credit by trial judge — No failure to use advantage as trial judge or findings contrary to evidence — Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways (1993) 177 CLR 472 applied.

Beazley JA This is an appeal from a decision of Judge Downs in the District Court dismissing a claim for damages arising from a motor vehicle accident which occurred on Friday 17 August 1984 in Broken Hill. The appellant and two companions had driven from Adelaide to Broken Hill for a billiard competition, arriving in Broken Hill at approximately 6.45 pm. The appellant did not drive the car until they were just outside of Broken Hill.

Her evidence at trial was that she had been travelling west along Oxide Street, Broken Hill at a speed of approximately 40 kilometres per hour looking for the motel they were to stay in. Upon reaching the intersection of Oxide Street and Wyman Streets they realised that they had passed the motel. The appellant intended to cross Wyman Street, make a u-turn and return down Oxide Street.

The appellant said that before entering the intersection she looked to her right down Wyman Street and did not see any other car. She said she did not see it until she was in the middle of the intersection and "had nowhere to go".

The other car, driven by a Mr Clark collided with the appellant's vehicle on the driver's side at about the centre pillar. The impact caused the car the appellant was driving to jump the kerb and smash into the front brick fence of a house on Wyman Street. The appellant was trapped in the vehicle for sometime and sustained a fractured right hip as a result of which she was hospitalised for more than two months and was incapable of weight bearing for more than six months.