Dent v Calcagno

Case [2016] NSWCA 289

Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Dent v Calcagno [2016] NSWCA 289
Hearing dates:24 August 2016
Decision date: 19 October 2016
Before: Basten JA at [1];
Macfarlan JA [59];
Sackville AJA [65]
Decision:

1.   Appeal allowed.
2.   Set aside Orders 1 and 2 made by the primary Judge on 18 December 2015.
3.   In lieu thereof make the following orders:
1.   Judgment for the defendant.
2.   The plaintiff pay the defendant’s costs.
4.   Dismiss the cross-appeal.
5.   The respondent pay the appellant’s costs of the appeal.
6. The respondent have a certificate under the Suitors’ Fund Act 1951 (NSW).
7.   No order as to the costs of the cross-appeal.

Catchwords: TORTS - negligence – vehicle turning into driveway on country road – collision with overtaking cyclist – whether driver of vehicle negligent by failing to look in rear vision mirror before turning – whether primary Judge erred in finding that right hand indicator activated late – whether driver was negligent if indicator activated earlier than primary Judge found.
Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5B, 5D
Suitors’ Fund Act 1951 (NSW)

Road Rules 2008 (NSW) rr 48, 140, 142, 144
Cases Cited: Calcagno v Dent [2015] NSWDC 308
Gordon v Truong [2014] NSWCA 97
Category:Principal judgment
Parties: Norma Maree Dent (Appellant)
Steve Calcagno (Respondent)
Representation:

Counsel: Mr P Deakin QC and Mr A J Parker (Appellant/Cross Respondent)
Mr E G Romaniuk SC and M G Gilbert (Respondent/Cross Appellant)

  Solicitors:
Grant Galvin, Hall & Wilcox Lawyers (Appellant)
Ray Abbas, Gerard Malouf & Partners (Respondent)
File Number(s):2015/378154
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Civil
Citation:
[2015] NSWDC 308
Date of Decision:
26 October 2015
Before:
Mahony SC DCJ
File Number(s):
2013/43273

Judgment

  1. BASTEN JA: At about 3.40 pm on 19 March 2012, the respondent, Steve Calcagno, was driving north on his motorcycle along Queens Pinch Road, near Mudgee in the central west of New South Wales. He was travelling at or near the speed limit of 100 kph as he approached a slow moving vehicle, also travelling north, driven by the appellant, Norma Maree Dent. The respondent sought to overtake the appellant, as she was undertaking a right hand turn into her driveway, with the result that the respondent collided with her vehicle, was thrown from his motorcycle and suffered severe injuries.

  2. At a trial in the District Court, the appellant was found liable in negligence, with the judgment for the respondent being reduced by 25% for contributory negligence. The respondent was awarded damages in an amount a little over $500,000. [1]

    1. Calcagno v Dent [2015] NSWDC 308 (Primary Judgment).

  3. The appellant appealed from the judgment against her, challenging the finding of liability, the limited finding of contributory negligence and an aspect of the damages award. The respondent cross-appealed against the finding of contributory negligence. For the reasons explained below, the appellant should not have been found liable; the other issues fall…

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AGLC
Dent v Calcagno [2016] NSWCA 289
Case
[2016] NSWCA 289
Decision Date

CaseChat Overview and Summary

The appeal in *Dent v Calcagno* concerned a collision between a motor vehicle driven by the defendant and a cyclist, the plaintiff, on a country road. The plaintiff alleged the defendant was negligent in turning into a driveway without adequately checking for overtaking traffic. The primary judge had found the defendant negligent, specifically noting the late activation of the defendant's right-hand indicator.

The appellate court was required to determine whether the primary judge erred in finding the defendant negligent, particularly in relation to the timing of the indicator activation and whether the defendant failed to take reasonable care by not looking in their rear-vision mirror before turning. The court also considered whether the defendant would have been negligent even if the indicator had been activated earlier than the primary judge found.

The Court of Appeal allowed the appeal, setting aside the primary judge's orders and entering judgment for the defendant. The court reasoned that the evidence did not support the primary judge's finding that the indicator was activated late. Instead, the court concluded that the indicator was activated in a timely manner, and the defendant had taken reasonable steps to check for traffic before turning. Consequently, the defendant was not found to be negligent. The plaintiff's cross-appeal was dismissed.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside Orders 1 and 2 made by the primary Judge on 18 December 2015.

3. In lieu thereof make the following orders:

1. Judgment for the defendant.

2. The plaintiff pay the defendant’s costs.

4. Dismiss the cross-appeal.

5. The respondent pay the appellant’s costs of the appeal.

6. The respondent have a certificate under the Suitors’ Fund Act 1951 (NSW).

7. No order as to the costs of the cross-appeal.

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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