Calcagno v Dent

[2015] NSWDC 308

District Court

New South Wales

Medium Neutral Citation:	Steve Calcagno v Norma Maree Dent [2015] NSWDC 308
Hearing dates:	26-30 October 2015
Decision date:	18 December 2015
Jurisdiction:	Civil
Before:	Mahony SC DCJ
Decision:	Verdict and judgment for the plaintiff, reduced by 25 per cent for the plaintiff’s contributory negligence. For orders see [163]
Catchwords:	Negligence; overtaking vehicle, contributory negligence
Legislation Cited:	Civil Liability Act 2002 (NSW) Motor Accidents Compensation Act 1999 (NSW) Motor Accidents (Lifetime Care and Support) Act 2006 (NSW)
Cases Cited:	Cocks v Sheppard (1979) 25 ALR 325 Davis v Swift [2014] NSWCA 458 Gordon v Truong; Truong v Gordon [2014] NSWCA 97 Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 Ilsley v Boots (1970) 2 NSWLR 551 Jones v Rice (1987) 5 MVR 77 Manley v Alexander (2005) 80 ALJR 413 Marien v Gardiner; Marien v HJ Heinz Company Australia Ltd [2013] NSWCA 396 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Miller v Galderisi [2009] NSWCA 353 Nominal Defendant v Bacon [2014] NSWCA 275 Nominal Defendant v Smith [2015] NSWCA 339 Richards v Picco [2000] NSWCA 35
Category:	Principal judgment
Parties:	Steve Calcagno (Plaintiff) Norma Maree Dent (Defendant)
Representation:	Counsel: D Wheelahan QC with M Gilbert (Plaintiff) P Deakin QC with A Parker (Defendant)   Solicitors: Gerard Malouf & Partners Sparke Helmore Lawyers
File Number(s):	13/43273
Publication restriction:	Nil

Judgment

The plaintiff’s claim

1. On 19 March 2012, the plaintiff sustained severe personal injuries when he was the rider of a motorcycle on Queens Pinch Road, south of Mudgee. The plaintiff’s motorcycle collided with a vehicle being driven by the defendant, in the course of the plaintiff overtaking the defendant’s vehicle. By an Amended Statement of Claim filed pursuant to leave granted by me on 26 October 2015, the first day of the trial, the plaintiff pleaded his claim as follows:

“5 The Plaintiff noticed that the Defendant had her left indicator on and assumed that the Defendant was going to turn left. As the Plaintiff attempted to overtake the Defendant’s vehicle, the Defendant made a sudden right hand turn knocking the Plaintiff to the ground.

6 PARTICULARS OF NEGLIGENCE

The Defendant was negligent in that she:

(a) Failed to turn left as she had indicated and instead turned right;

(b) Failed to operate vehicle in a safe manner;

(c) Failed to indicate her intention to turn right;

(d) Failed to warn the Plaintiff of her intention to turn right;

(e) Drive her vehicle at a speed which was excessive in the circumstances;

(f) Failed to have any regard to the position of the Plaintiff on the road way;

(g) Failure to make any or any adequate observation as to the presence of the vehicles approaching from behind before executing a right hand turn across the path of any such vehicle.

(h) Failure to consult her internal or external rear view mirrors before executing a right hand turn across the path of any vehicle that may have been approaching or overtaking her vehicle, from…