DITTON v WHITTON [1997] NSWCA 88

DITTON v WHITTON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL COLE, BEAZLEY and STEIN JJA 5 September 1997, 5 September 1997

[1997] NSWCA 88

Apportionment of liability — whether liability should be apportioned equally — indemnity costs — offer of compromise — District Court Rules Pt19A r2 and r9

STEIN JA This appeal raises a single issue. Was the trial judge's apportionment of liability between the parties in error? In a decision delivered in the District Court on 21 May 1996 Patten DCJ awarded the plaintiff/respondent, Maria Christine Whitton, the sum of $113,590.60. He apportioned the respondent's liability as 15% and accordingly reduced the assessment of damages from $136,636. It is the defendant/appellant's position that his Honour should have apportioned liability equally between the parties.

The accident occurred on Saturday, 4 December 1993 in the following circumstances. The respondent was driving south on Watanobbi Road, Watanobbi on the Central Coast. This road intersects with Casey Drive forming a T-intersection. There is a crest in Watanobbi Road 42m north of the intersection with Casey Drive. There had been drizzly rain and the road was wet. The respondent was familiar with the area and was on the way to hospital to have her son's wound dressed.

As the respondent came over the crest travelling, according to her, at a speed of 50kph, she saw the appellant's vehicle was stationary across her side of the road and directly in her path. She braked hard, changed down through the gears, but was unable to avoid a collision. The front of her vehicle struck the appellant's Hi-Lux utility midway along its near side.

The appellant had driven his vehicle down Casey Drive to the intersection with Watanobbi Road to make a three point turn in order to travel back along Casey Drive in the opposite direction. He had manoeuvred his vehicle so that its front was near to the eastern kerb of Watanobbi Road. It was stationary in this position when the respondent came over the crest. The appellant said he did not have sufficient time to reverse and there was nothing he could do to avoid the impact. Like the respondent, the appellant was familiar with the area. His Honour had no difficulty finding that the appellant was negligent, as he undoubtedly was.