Brien v Gould [2007] NSWDC 159

New South Wales District Court

CITATION: Brien v Gould [2007] NSWDC 159

HEARING DATE(S): 2, 3 and 7 May 2007

JUDGMENT DATE: 10 May 2007

JURISDICTION: District Court - Civil Jurisdiction

JUDGMENT OF: Johnstone DCJ at 1

DECISION: Judgment for the defendant; The plaintiff is to pay the defendant's costs to 14 March 2007 on the ordinary basis and thereafter on an indemnity basis

CATCHWORDS: Negligence - motor accident - motor cyclist collides with partly opened door of a parked car - case turns on its own facts - no issue of principle

LEGISLATION CITED: Motor Accidents Compensation Act 1999

PARTIES: Stuart Brien (Plaintiff) Peter Gould (Defendant)

FILE NUMBER(S): 2875/06

COUNSEL: Mr P Stockley (Plaintiff) Mr W Reynolds (Defendant)

SOLICITORS: Ron Kramer Associates (Plaintiff) Lee & Lyons (Defendant)

JUDGMENT

Introduction 1. Mr Brien was injured in a motor accident as he was riding his motorcycle along Wentworth Avenue, Mascot, at about 5.00pm on 13 December 2004, when he collided with the door of a parked car that was opened in his path. He says the accident was caused by the fault of Mr Gould, the driver of the parked car, when he opened his car door suddenly, without adequately checking to ensure that it was safe to do so.

2. The defendant denies liability. Mr Gould's car was parked close to the kerb. He checked to ensure that it was safe to open the door before doing so, by first looking in the mirror, at which time Mr Brien and his motorcycle were not visible. Furthermore, he only partly opened the door, no more than 30 to 35 centimetres. He says that Mr Brien was riding too fast and too close to his parked car, and the collision was solely the fault of Mr Brien.