Ayre v Swan

[2019] NSWCA 202

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Ayre v Swan [2019] NSWCA 202

Hearing dates:

24 June 2019

Decision date:

16 August 2019

Before:

Basten JA at [1];
Macfarlan JA at [56];
McCallum JA at [57]

Decision:

(1)   Appeal allowed in part.

 

(2)   Set aside the primary judge’s determination as to contributory negligence and in lieu thereof assess the contributory negligence of the plaintiff at 80%.

 

(3)   Set aside the judgment of the District Court and in lieu thereof enter judgment for the plaintiff in the amount of $122,947.

 (4)   Order that the respondent pay the appellant’s costs of the appeal.

Catchwords:

TORTS – negligence – road accident – liability of defendant – defendant completing a right-hand turn across double on-coming lanes – visibility of plaintiff’s motorcycle blocked by car in front – plaintiff sought to overtake car at a high speed on inside lane – collided with defendant – whether defendant negligent in failing to slow down or stop – reasonableness of precautions against unseen vehicles travelling at high speeds – expectation that road users will take reasonable care for their own safety

  EXPERT EVIDENCE – negligence – calculation of speed – CCTV footage of accident – failure to assess weight of expert evidence – confirmatory report not taken into account

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5B, 5R, 54
Motor Accidents Compensation Act 1999 (NSW), ss 126, 138
Road Transport Act 2013 (NSW), s 117

Cases Cited:

Allianz v Cervantes [2012] NSWCA 244
Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29
Gordon v Truong [2014] NSWCA 97; (2016) 66 MVR 241
Nominal Defendant v Livaja [2011] NSWCA 121
Penrith City Council v Parks [2004] NSWCA 201
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42

Category:

Principal judgment

Parties:

Vicki Babette Ayre (Appellant)
Mitchell Richard Swan (Respondent)

Representation:

Counsel:
Mr P Deakin QC / Ms N Compton (Appellant)
Mr M Cranitch SC / Mr F Austin (Respondent)

  Solicitors:
Hall & Wilcox Lawyers (Appellant)
Byrnes Lawyers (Respondent)

File Number(s):

2019/8079

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Civil

Date of Decision:

14 December 2018

Before:

Yehia SC DCJ

File Number(s):

2014/150247

headnote

[This headnote is not to be read as part of the judgment]

On 18 June 2012 the defendant, Ms Ayre, was travelling north-west on Lake Road, Port Macquarie. Ms Ayre sought to make a right-hand turn into a commercial driveway. There was oncoming traffic, relevantly a car driven by Mr Michael Smith and a motorcycle driving by the plaintiff, Mr Swan. Mr Swan was travelling behind Mr Smith so that Ms Ayre’s view of the motorcycle was entirely obscured by Mr Smith’s vehicle. Ms Ayre commenced her right-hand turn without coming to a complete stop. As Ms Ayre was undertaking her turn, Mr Swan increased his…