Downie v Johnson [2001] NSWCA 483 (13 December 2001)

Last Updated: 28 February 2002

NEW SOUTH WALES COURT OF APPEAL

CITATION: Downie v Johnson [2001] NSWCA 483

FILE NUMBER(S):

40207/01

HEARING DATE(S): 13/12/01

JUDGMENT DATE: 13/12/2001

PARTIES:

Melonie Jane Downie

v

Brett Keith Johnson

JUDGMENT OF: Meagher JA Heydon JA Ipp AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2996/00

LOWER COURT JUDICIAL OFFICER: Garling DCJ

COUNSEL:

A: Mr Williams SC

R: Mr Barry QC with Mr Davidson

SOLICITORS:

A: Windeyer Dibbs

R: Carneys Lawyers

CATCHWORDS:

LEGISLATION CITED:

DECISION:

Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40207/01

MEAGHER JA

HEYDON JA

IPP AJA

Thursday, 13 December 2001

MELONIE JANE DOWNIE v BRETT KEITH JOHNSON

Judgment

1 MEAGHER JA: This is an appeal from a judgment of Garling DCJ in a motor accident case in which the plaintiff, Mr Johnson, sued the defendant, Mrs or Miss Downie for damages arising out of the accident in question.

2 Mr Johnson was riding his bike in a southerly direction in Mulbring Street, Cessnock and the defendant was driving her motor vehicle in an easterly direction in Northcote Street. The defendant did not give evidence; the plaintiff of course did; there was one witness, a Mr Mountain. Mr Mountains's evidence did not entirely correspond with Mr Johnson's evidence. His Honour heard both of them and came to the conclusion which he is entitled to, that the plaintiff's evidence was to be preferred to that of Mr Mountain.

3 What his Honour said, "I accept the plaintiff's version and I prefer it to that of Mr Mountain...the plaintiff had a good view and a good knowledge of what happened."

4 The plaintiff, when he was driving south, knew that at the intersection of Mulbring Street and Northcote Street, that there were Give Way signs in Northcote Street at the junction. He saw, at some stage and I do not think it matters at what stage, the defendant driving her car in Northcote Street towards the intersection. He formed the view that she was going to obey the Give Way sign and his Honour found that he was reasonable in his view on that matter. That view was, in part, contributed to by the fact that she did in fact slow down as she approached the sign. Unfortunately she slowed down but did not stop. The plaintiff, however, pursuant to his view that she was going to stop, drove on in the normal way; a collision occurred.

5 The case before his Honour, and to a certain extent the case before us, would involve computations of times and distances which both the plaintiff's motor bicycle and the defendant's motor car were travelling. His Honour declined the invitation to indulge in that speculation and I think we should do likewise. The basic fact which his Honour found and he was entitled to find, was that the plaintiff was riding his vehicle in a manner in which he did keep an adequate look out in the process and which he came to the conclusion, on evidence that would entitle him to do so, that the defendant was going to obey the law and stop at the Give Way sign. He at no relevant stage anticipated that she would depart from her legal duty and disregard the Give Way sign.

6 In those circumstances it was inevitable that the plaintiff receive a verdict and that there be a finding that he was not guilty of any contributory negligence. I see no reason why his Honour's judgment should be disturbed in any way. I would therefore be minded to dismiss the appeal with costs.

7 HEYDON JA: I agree.

8 IPP AJA: I agree.

9 MEAGHER JA: The order of the Court therefore is that the appeal is dismissed with costs.

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LAST UPDATED: 27/02/2002