David Gilbey v Lyndall Murray

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.