David Gilbey v Lyndall Murray - [2011] NSWDC 255

District Court

New South Wales

Medium Neutral Citation: David Gilbey v Lyndall Murray [2011] NSWDC 255
Decision date: 16 December 2011
Before: Cogswell SC DCJ
Decision:
Verdict and judgment for the defendant against the plaintiff. Plaintiff to pay defendant's costs on an ordinary basis.

Catchwords:
TORTS - Negligence - collision between car and motorbike - plaintiff overtook defendant from behind at same time defendant turned into driveway across oncoming lane - acknowledged that plaintiff owed duty of care to defendant - defendant breached duty owed to other road users - failed to check in side mirrors or over shoulder for overtaking vehicles - foreseeable risk that a person may attempt to overtake on clear stretch of road where speed limit of 90 km per hour - causation - defendant's negligence not a necessary condition of the occurrence of the harm to the plaintiff - defendant would not have seen plaintiff had she checked before turning - plaintiff not there to be seen had defendant looked - defendant well committed to turn when collision occurred. Contributory negligence - plaintiff's culpability greater than defendant - defendant failed to guard against possibility someone may be carelessly overtaking - plaintiff carelessly overtook when traffic was slowing - plaintiff's contributory negligence 65 per cent.

EVIDENCE - Evidence of witness in car immediately behind defendant preferred to evidence of plaintiff and defendant - focus on defendant's car.
PROCEDURE - Costs - application that plaintiff pay costs on indemnity basis since offer of compromise - not real offer of compromise - not open and shut case - dependant on credibility of witnesses - plaintiff to pay defendant's costs on an ordinary basis.
Legislation Cited: Civil Liability Act 2002 ss 5B, 5D, 5E
Cases Cited: Hawthorne v Hillcoat [2008] NSWCA 340.
Jones v Dunkel (1959) 101 CLR 298.
Podrebersek v Australian Iron and Steel Pty Limited [1985] HCA 34; (1985) 59 ALJR 492.
Regency Media v AAV Australia [2009] NSWCCA 368.
Vale v Eggins [2006] NSWCA 348; (2006) Aust Torts Reports 81-869.
Zanner v Zanner [2010] NSWCA 343.
Category: Principal judgment
Parties: David Gilbey (Plaintiff)
Lyndall Murray (Defendant)
Representation: Counsel:
A J Stone (Plaintiff)
W M Fitzsimmons (Defendant)

File Number(s): DC 2010/251365

Judgment

David Gilbey was riding his motorbike along Coolangatta Road on the South Coast. The road runs between Berry and Shoalhaven Heads. Mr Gilbey was heading towards Shoalhaven Heads.

Ms Lyndall Murray was driving her car in the same direction along the same road. She was ahead of Mr Gilbey. Ms Murray was heading towards her mother's home which was on Coolangatta Road at Far Meadow. The house was on the right along a straight stretch of a two lane road.

Ms Murray turned from the lane she was in across the oncoming lane towards her mother's driveway. But Mr Gilbey was overtaking at the same time and he collided with her. It was a serious crash and Mr Gilbey was badly injured. The accident happened about 3:00pm on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading David Gilbey v Lyndall Murray

Details

AGLC: David Gilbey v Lyndall Murray [2011] NSWDC 255
Case: [2011] NSWDC 255
Decision Date: 16 December 2011

CaseChat Overview and Summary

David Gilbey brought a claim against Lyndall Murray in relation to a road accident that occurred when Gilbey's motorbike collided with Murray's car. The incident happened when Gilbey attempted to overtake Murray from behind, at the same time Murray turned into a driveway across the oncoming lane. The court was required to determine whether Murray's actions constituted negligence, and whether Gilbey's overtaking contributed to the accident. The court acknowledged that Murray owed a duty of care to Gilbey and other road users, but found that Murray breached this duty by failing to check her side mirrors or over her shoulder for overtaking vehicles. The court held that while it was foreseeable that someone may attempt to overtake on the clear stretch of road, Murray's negligence was not a necessary condition of the occurrence of the harm to Gilbey. The court also found that Gilbey's contributory negligence was greater than Murray's, as Gilbey overtook carelessly when traffic was slowing.

The court preferred the evidence of a witness in a car immediately behind Murray over the evidence of Gilbey and Murray, focusing on Murray's car. The court made a finding regarding costs, holding that the plaintiff was to pay the defendant's costs on an ordinary basis. The court found that there was no real offer of compromise, and that the case was not open and shut, but rather depended on the credibility of the witnesses. The court rejected the application that Gilbey pay Murray's costs on an indemnity basis.

The court found in favour of Murray, holding that she was not negligent in the circumstances of the accident, and that Gilbey's contributory negligence was greater. The court ordered that judgment and verdict be entered in favour of Murray against Gilbey, and that Gilbey pay Murray's costs on an ordinary basis.

Orders

Orders of the court

Verdict and judgment for the defendant against the plaintiff. Plaintiff to pay defendant's costs on an ordinary basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	David Gilbey v Lyndall Murray [2011] NSWDC 255
Decision date:	16 December 2011
Before:	Cogswell SC DCJ
Decision:	Verdict and judgment for the defendant against the plaintiff. Plaintiff to pay defendant's costs on an ordinary basis.
Catchwords:	TORTS - Negligence - collision between car and motorbike - plaintiff overtook defendant from behind at same time defendant turned into driveway across oncoming lane - acknowledged that plaintiff owed duty of care to defendant - defendant breached duty owed to other road users - failed to check in side mirrors or over shoulder for overtaking vehicles - foreseeable risk that a person may attempt to overtake on clear stretch of road where speed limit of 90 km per hour - causation - defendant's negligence not a necessary condition of the occurrence of the harm to the plaintiff - defendant would not have seen plaintiff had she checked before turning - plaintiff not there to be seen had defendant looked - defendant well committed to turn when collision occurred. Contributory negligence - plaintiff's culpability greater than defendant - defendant failed to guard against possibility someone may be carelessly overtaking - plaintiff carelessly overtook when traffic was slowing - plaintiff's contributory negligence 65 per cent. EVIDENCE - Evidence of witness in car immediately behind defendant preferred to evidence of plaintiff and defendant - focus on defendant's car. PROCEDURE - Costs - application that plaintiff pay costs on indemnity basis since offer of compromise - not real offer of compromise - not open and shut case - dependant on credibility of witnesses - plaintiff to pay defendant's costs on an ordinary basis.
Legislation Cited:	Civil Liability Act 2002 ss 5B, 5D, 5E
Cases Cited:	Hawthorne v Hillcoat [2008] NSWCA 340. Jones v Dunkel (1959) 101 CLR 298. Podrebersek v Australian Iron and Steel Pty Limited [1985] HCA 34; (1985) 59 ALJR 492. Regency Media v AAV Australia [2009] NSWCCA 368. Vale v Eggins [2006] NSWCA 348; (2006) Aust Torts Reports 81-869. Zanner v Zanner [2010] NSWCA 343.
Category:	Principal judgment
Parties:	David Gilbey (Plaintiff) Lyndall Murray (Defendant)
Representation:	Counsel: A J Stone (Plaintiff) W M Fitzsimmons (Defendant)
File Number(s):	DC 2010/251365