Ayre v Swan

The appeal in *Ayre v Swan* concerned a road accident involving a collision between the appellant, Mr Swan, and the respondent, Mr Ayre. Mr Ayre was completing a right-hand turn across double oncoming lanes when his vehicle was struck by Mr Swan's motorcycle. Mr Swan had been attempting to overtake a car in front of him at high speed in the inside lane, and his view of Mr Ayre's vehicle was obstructed by that car. The dispute centred on the apportionment of liability for the accident.

The Court of Appeal was required to determine whether Mr Ayre was negligent in failing to slow down or stop when making his turn, and whether he had taken reasonable precautions against the risk of unseen vehicles travelling at high speeds. Additionally, the court considered the reasonableness of expecting other road users to take reasonable care for their own safety in such circumstances. The court also had to assess the weight to be given to expert evidence regarding the calculation of speed, particularly in light of CCTV footage and a confirmatory report that had not been fully taken into account by the primary judge.

The Court of Appeal found that while Mr Ayre was negligent in failing to ensure his path was clear before turning, Mr Swan's conduct was the primary cause of the accident. The court reasoned that Mr Swan's decision to overtake at high speed in an obstructed lane demonstrated a significant lack of reasonable care for his own safety. The court therefore set aside the primary judge's finding on contributory negligence and assessed Mr Swan's contributory negligence at 80%.

Consequently, the Court of Appeal allowed the appeal in part, setting aside the judgment of the District Court and entering judgment for Mr Swan in the amount of $122,947. The court also ordered that Mr Ayre pay Mr Swan's costs of the appeal.