TKACIK v LEIGH [1997] NSWCA 320

TKACIK v LEIGH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY and HANDLEY JJA and GROVE AJA 17 April 1997

[1997] NSWCA 320

NEGLIGENCE — Motor vehicle collision — conflicting versions — no preference of Trial Judge for either party on witness credibility assessment — examination of objective facts skid marks and damage to determine probable events

Grove AJA The appellant sought damages for personal injuries sustained in a motor collision which occurred at about 8.30 am on Tuesday 2 March 1993. The trial judge, her Honour Judge Tupman, found a verdict for the defendant and this appeal challenges that judgment.

The accident occurred in the Grand Parade, Dolls Point which is a main arterial road in the area carrying two lanes of traffic in either direction. In the relevant vicinity it runs from north to south. Although peak traffic might be expected at about that time the evidence was limited to the presence of the motor cars being driven by the appellant and the respondent respectively. Neither car was carrying a passenger and no witnesses to the accident were called. A police officer who later attended the scene conveyed statements which he took from the respective drivers.

The versions of the appellant and the respondent involved a little more complication than is usually encountered in road traffic cases and the most convenient way to sketch the contest is to relate those versions.

The appellant was unfamiliar with the area. She was employed by a home care service and was seeking the address 311 Grand Parade. She approached along it in a southerly direction and observed that the relevant house would be located with the odd numbers on the western side of the street. She went past 311 and turned into an intersecting street (Sandringham Street) to the south of it. She followed that street until at a convenient place in a street intersecting with it she was able to turn and retrace her path thus entering Grand Parade and travelling north towards 311. Upon arrival at what she took to be that address she made a left turn into the driveway. She discovered that she had in fact turned into the driveway of 313. She brought her vehicle entirely onto the footpath and verge adjacent to the traffic carriageway in order not to impede the city bound traffic moving north. She perceived that she was unable to move along the verge from 313 to the driveway of 311 because of the existence of the obstacles of a tree and pole. This was discovered when she moved forward to near the tree and then reversed to the driveway upon which she had entered and then forwardly re-entered the Grand Parade travelling north in the kerbside lane and made her way to the driveway of 311 and negotiated her vehicle into it slowly. When, what she estimated to be two thirds of her car was within the driveway, she suddenly felt an impact on the rear passenger's side of her car.