Elias v Allianz Insurance Limited [2006] NSWCA 141

New South Wales Court of Appeal

CITATION: Elias v Allianz Insurance Limited [2006] NSWCA 141

HEARING DATE(S): 16 May 2006

JUDGMENT DATE: 16 May 2006

JUDGMENT OF: Beazley JA at 21; Santow JA at 1; Tobias JA at 22

EX TEMPORE JUDGMENT DATE: 05/16/2006

DECISION: Appeal allowed. See orders at [20].

CATCHWORDS: NEGLIGENCE – Contributory negligence – Onus of proof on defendant.

PARTIES: Roukas ELIAS (Appellant) ALLIANZ INSURANCE LIMITED (Respondent)

FILE NUMBER(S): CA 40354/05

COUNSEL: D K TOOMEY (Appellant) B G SMITH (Respondent)

SOLICITORS: Stacks/Goudkamp (Appellant) Sparke Helmore (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 4722/03

LOWER COURT JUDICIAL OFFICER: Hughes ADCJ

LOWER COURT DATE OF DECISION: undated

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40354/05 DC 4722/03

BEAZLEY JA SANTOW JA TOBIAS JA

16 MAY 2006 Roukoz ELIAS v ALLIANZ INSURANCE LIMITED Judgment 1 SANTOW JA: INTRODUCTION The appellant, Mr Roukoz Elias, claimed damages for various injuries he claimed to have sustained in a motor vehicle accident. The circumstances briefly were these. Between 8.30pm and 9.30pm on a rainy night on 21 October 2001, the appellant was driving home from visiting a friend. I interpolate here that that may support an inference that he was familiar with the route, although there was no evidence directly on that point. 2 He was travelling north on a sloping road, sloping downwards to a railway underbridge on Balmoral Street at Blacktown; see map at Blue 1, 210. Approaching the underbridge the appellant was proceeding north along Balmoral Street until he came to the traffic lights at the intersection of Kildare Street. He was in the left hand lane of Balmoral Street. He intended after passing through the tunnel to turn left into Richmond Road. Travelling north Balmoral Street is two lanes until the intersection with Kildare Road. North of that intersection Balmoral Street became three lanes by reason of an additional lane formed by a continuation of a left turning lane from Kildare Road into Balmoral Street. From a spot marked by a circle on a photograph at Blue 1, 195, the appellant commenced to move from what had been the left hand lane in Balmoral Street, being now the middle lane after the feeder lane merged with Balmoral Street, to the extreme left hand lane. 3 It was dark and the appellant had his headlights on low beam. It was raining evidenced by the fact that the appellant had his windscreen wipers on and the police who attended the accident wore raincoats. They gave evidence that they wore raincoats only when there was considerable rain. 4 A car was parked in the underpass, in the left hand lane, probably a little over halfway through the tunnel, being about 15 metres from the southern side of the bridge. The car was dark in colour and none of its lights were on. 5 It was not disputed that there was a "no stopping" sign there at the relevant time, that is to say at the commencement of the underpass, and it would appear from the photograph at some height. 6 While there was a light just before the commencement of the underpass, the evidence points to the underpass itself being badly illuminated. 7 When asked by the police "Can you tell me what happened?" The appellant said, "I was at the traffic lights on Balmoral Street. I drove through when the lights went green. I was in the left land to turn left at lights on Richmond Road. I was driving. I didn't see anything. By the time I saw the car I tried to change lanes to the middle lane. I wasn't able to, because there was another vehicle beside me. I then couldn't stop; it was too late. I then hit the back of the car, which was parked in front of me, I tried to stop but my brakes didn't stop me. The car was parked with no lights on and had no people in it." 8 The appellant's car hit the parked car causing it to move about three metres forward and sideways partially into the middle lane. 9 The appellant told the police he was driving at 50 kilometres per hour when he hit the parked car. He said at the time he was not injured. It turned out that the parked car had been stolen and parked under the railway bridge by the thief.