Dos Santos v C Morris Painting & Decorating & Anor

This matter concerned an appeal and cross-appeal arising from a motor vehicle accident involving a cyclist, the appellant, and a driver, the second respondent, employed by the first respondent. The dispute centred on the circumstances of a collision between the cyclist and the driver, who was seeking a parking space. The case was heard in the appellate court, reviewing the findings of the primary judge.

The legal issues before the court were whether the driver was negligent in failing to indicate when changing lanes and whether the cyclist was guilty of contributory negligence by riding in a clearway during parking times and colliding with the driver's vehicle. The court was required to determine if the primary judge's findings of negligence and contributory negligence were justified based on the established facts.

The court upheld the primary judge's findings. It reasoned that the driver was negligent for failing to indicate before changing lanes, failing to keep a proper lookout for cyclists in the left-hand lane, and executing an unsafe lane change. The court also found the cyclist contributorily negligent, assessing their contribution at 20 per cent. This finding was based on the cyclist's decision to ride in the left-hand lane, where cars were parked, at a speed of approximately 20 km/h, while a vehicle ahead was clearly looking for parking. The court held that in such circumstances, the cyclist should have been aware that the vehicle might turn into a parking spot without indicating, and therefore had an obligation to take greater care for their own safety. The appeal and cross-appeal were dismissed with costs.