Bezzina v Taylor

[2001] NSWCA 388

CITATION:	Bezzina v Taylor [2001] NSWCA 388
FILE NUMBER(S):	CA 40801/00
HEARING DATE(S):	26 October 2001
JUDGMENT DATE:	26 October 2001
PARTIES :	Daniel John Bezzina - Appellant Kathleen Taylor - Respondent
JUDGMENT OF:	Stein JA at 1; Giles JA at 16; Rolfe AJA at 17

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 4743/99
LOWER COURT JUDICIAL OFFICER :	Herron DCJ

COUNSEL:	P Webb QC/R Royle - Appellant J Hislop QC/P M Barham - Respondent
SOLICITORS:	Stewart, Cuddy & Mockler - Appellant Somerville & Co, North Sydney - Respondent
CATCHWORDS:	TORT - NEGLIGENCE - motor vehicle accident - appellant on incorrect side of the road - whether overhanging vegetation required driving on incorrect side of the road - whether findings open on the evidence - DAMAGES - assessment - whether non-economic loss excessive - whether economic loss correct - ND
LEGISLATION CITED:	Supreme Court Act 1970
CASES CITED:	n/a
DECISION:	1) Appeal dismissed with costs. 2) By consent verdict and judgment below varied by increasing judgment for the plaintiff/respondent to $253,183.

4

CA 40801/00
STEIN JA
GILES JA
ROLFE AJA


Friday 26 October 2001

Daniel John BEZZINA v Kathleen TAYLOR

Judgment

1 STEIN JA: The Court is of the opinion that the appeal should be dismissed with costs and that it does not raise any question of general principle pursuant to s 45(4) of the Supreme Court Act 1970.

2 The Court's reasons in short form will follow. Before embarking on those reasons it should be noted that upon the dismissal of the appeal, it is agreed between the parties that the verdict sum should be amended because of an arithmetical error made by his Honour in relation to the Fox v Wood component of the damages. In due course, the judgment will be varied.

3 The respondent was injured in a motor vehicle accident which occurred at Lisarow in 1996. Her motor car came into collision with a truck being driven by the appellant on a bend of the roadway.

4 At and before the time of impact the respondent was driving on her correct side of the road, which was a fairly narrow one, and with a dirt surface. At and before the time of impact the appellant was driving partly on his incorrect side of the road.

5 Prior to the collision occurring, both parties applied their brakes and skidded. His Honour found that the defendant was negligent. In my opinion, this was a conclusion that was completely open on the evidence.

6 The appellant submits that there was evidence that overhanging vegetation on the roadway prior to the curve where the accident occurred meant that he had to be on his incorrect side of the road. It may be mentioned that his Honour acknowledged the vegetation at the side of the road in giving his reasons for judgment.

7 When the relevant evidence about the overhanging vegetation is examined, it will be seen that it is equivocal and insufficient to establish what the appellant seeks to establish from it. There is, of course, no doubt that in the curve, where the accident occurred, the roadway was wide enough for both vehicles, that is the respondent's motor car and the appellant's truck, to pass on their correct sides of the road.

8 Indeed, the defendant's evidence was that he was in fact on his correct side of the road for 15m or so prior to the accident, although this evidence was clearly incorrect. It is however indicative, as well as other evidence, that the defendant had enough space to move over onto his correct side of the road prior to the impact.

9 It must be kept in mind also that the defendant did not have to get the whole of the length of his truck past the last overhanging tree. Once the front portion of his truck was past the last overhanging tree, he could commence to move completely onto his correct side of the road.

10 In my opinion, his Honour was entitled to find as he did, and, indeed, I would agree with his conclusion.

11 Contributory negligence was pleaded. However, in giving his reasons for judgment his Honour did not mention this subject. Nevertheless, it is clear from his Honour's findings about the plaintiff driving on her correct side of the road at all relevant points of time and the finding concerning the plaintiff's speed of 50kph or less, both findings which were open to his Honour, that there was no contributory negligence by the plaintiff.

12 His Honour's assessment of damages is also attacked. It is submitted that his Honour's assessment of non economic loss was excessive. Bearing in mind the plaintiff's evidence and his Honour's assessment of her evidence, together with the medical evidence which was extensively canvassed by his Honour, the percentage determined by his Honour was within the range.

13 His Honour's assessment of economic loss is also challenged. However, I am of the view that his Honour's findings and conclusions on this issue were open to him on the evidence.

14 I can discern no error in his Honour's judgment which would lead to the appeal being upheld.

15 In my opinion the following orders should be made:

1. Appeal dismissed with costs.

2. By consent verdict and judgment below varied by increasing
judgment for the plaintiff/respondent to $253,183.

16 GILES JA: I agree.

17 ROLFE AJA: I also agree.

18 STEIN JA: Accordingly the orders of the Court are as I have just announced.

19 Mr Hislop submitted that there were offers of compromise served and that in each matter the verdict exceeded the amount of the offer and he, accordingly asked for costs on a solicitor/client basis from the date of the initial offer of compromise, 29 March 2000.

Discussion ensued.

20 STEIN JA: In the circumstances the orders we will make as to costs are:

That in relation to the order for costs of the District Court proceedings, the appellant be ordered to pay the respondent's costs on a solicitor/client basis. In relation to the appeal the appellant is to pay the respondent's costs of the appeal, including as from 21 September 2001 on an indemnity basis.

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