Draca v Silva

[2012] NSWCA 312

Court of Appeal

New South Wales

Case Title:

Draca v Silva

Medium Neutral Citation:

[2012] NSWCA 312

Hearing Date(s):

10 September 2012

Decision Date:

27 September 2012

Jurisdiction:

Before:

Hoeben JA at [1] 
Sackville AJA at [2] 
Tobias AJA at [3]

Decision:

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

MOTOR VEHICLE ACCIDENT - negligence- personal injury - whether primary judge erred in finding that the respondent was not aware at the time of the collision that the collision had occurred - whether the primary judge erred in failing to consider the evidence of eyewitnesses contrary to the respondent's version of events - whether the primary judge erred in finding that the respondent was not guilty of failing to keep a proper lookout or that he was in breach of his duty of care by failing to facilitate the appellant's need to move lanes

Legislation Cited:

Cases Cited:

Draca v Silva (DC, Walmsley DCJ, 19 August 2011, unreported)
Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413
Sibley v Kais (1967) 118 CLR 424

Texts Cited:

Category:

Principal judgment

Parties:

Slavko Draco (Appellant)
Carlos Silva (Respondent)

Representation

- Counsel:

D E Baran (Appellant)
J A Gracie (Respondent)

- Solicitors:

NSW Compensation Lawyers (Appellant)
Vardanega Roberts Solicitors (Respondent)

File number(s):

2010/00151234

Decision Under Appeal

- Court / Tribunal:

- Before:

Walmsley DCJ

- Date of Decision:

19 August 2011

- Citation:

- Court File Number(s)

2010/151234

Publication Restriction:

JUDGMENT

1. HOEBEN JA: I agree with Tobias AJA.

2. SACKVILLE AJA: I agree with Tobias AJA.

3. TOBIAS AJA: This appeal was heard on 10 September 2012. At the conclusion of the appellant's argument the Court informed counsel for the respondent that it did not need to hear from him as it was the Court's view that the appeal should be dismissed with costs. Orders to that effect were then made with reasons to be published in due course. What follows are my reasons for joining in the Court's orders.

4. The appeal arises out of a motor vehicle accident which occurred on 29 June 2006 when the appellant, who was driving his vehicle in an easterly direction in the left hand lane of a three lane road (being Liverpool Road, Homebush), attempted to merge his vehicle into the adjoining middle lane, whereupon a collision occurred between his vehicle and a truck being driven by the respondent in that middle lane. The collision caused the appellant's vehicle to strike the curb on the left hand side of the road. The vehicle came to an abrupt halt with the consequence that the appellant sustained whiplash injuries to…