Morrissey v Lackey [2008] NSWDC 78

New South Wales District Court

CITATION: Morrissey v Lackey [2008] NSWDC 78

HEARING DATE(S): 12-13 March 2008

JUDGMENT DATE: 24 April 2008

JURISDICTION: Civil

JUDGMENT OF: Sidis DCJ

1. Verdict for the defendant. DECISION: 2. The plaintiff is to pay the defendant's costs of the proceedings. 3. The exhibits are returned.

CATCHWORDS: MVA - Liability - cyclist affected by alcohol - adequacy of illumination of lighting - opportunity for driver to take evasive action - contributory negligence

PARTIES: Noel Eric Morrissey (Plaintiff) Janice Maree Lackey (Defendant)

FILE NUMBER(S): Newcastle 82/07

COUNSEL: P J Kirby (Plaintiff) P R Cummings (Defendant)

SOLICITORS: O'Sullivan & Saddington (Plaintiff) Moray & Agnew - Newcastle (Defendant)

JUDGMENT

1 Noel Eric Morrissey was struck by a car driven by Janice Maree Lackey. He suffered a serious fracture to his right leg. The parties are agreed on the compensation to be paid to the plaintiff if the defendant is found liable, subject to any deduction for contributory negligence.

2 In issue in the proceedings were the questions of whether the defendant negligently drove the car and whether there was any contributory negligence on the part of the plaintiff and, if so, its extent.

ISSUE 1 - LIABILITY

3 The plaintiff was riding his bicycle east on Cormorant Drive, Kooragang Island at 2am on 2 October 2005. The bicycle was pulling a box trailer, described as one foot six high and two feet wide, in which the plaintiff had placed an Esky containing ice, soft drinks and frozen vegetables. The sides of the trailer were made of metal mesh.

4 The defendant was driving her three or four year old Holden Commodore also in an easterly direction on Cormorant Drive when she ran into the bicycle and its trailer. There was no issue that the bicycle and the vehicle were in good order and neither was defective. The speed limit on the road was 80 kilometres an hour. It was a straight section of road. There were no street lights and there was no moonlight.