Evans v Lindsay

[2006] NSWCA 354

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Keith Bruce Evans & Anor v Stuart James Lindsay  [2006]  NSWCA 354

FILE NUMBER(S):
CA 40795/05

HEARING DATE(S):               15 August 2006

DECISION DATE:     11/12/2006

PARTIES:
Keith Bruce Evans (First Appellant)
Quality Bakers Australia Ltd t/as Riga Bakeries (Second Appellant)
Stuart James Lindsay by his next friend Robert Bryden (Respondent)

JUDGMENT OF:       Beazley JA Ipp JA Bryson JA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          2788/03

LOWER COURT JUDICIAL OFFICER:     Balla DCJ

COUNSEL:
R Bartlett SC;  D J Nolan (Appellants)
A J Lidden;  E Welsh (Respondents)

SOLICITORS:
Sparke Helmore (Appellants)
Bryden's Law Office (Respondents)

CATCHWORDS:
MOTOR VEHICLE ACCIDENT – breach of duty – standard of care required of driver – whether driver had sufficient control of speed and direction of vehicle to react to events within vicinity of car – dark wet conditions in built-up area – whether driver ought to have been driving slower than speed limit
DUTY OF CARE – driver of motor vehicle – whether reasonable response taken to risk of injury – whether failure to keep proper lookout
CONTRIBUTORY NEGLIGENCE – evaluative exercise – insufficient regard by respondent for own personal safety
REASONS FOR JUDGMENT – reasoning process – whether trial judge engaged in hindsight reasoning – whether trial judge’s findings contained internal inconsistencies

LEGISLATION CITED:
Civil Liability Act 2002 (NSW) ss 5B, 5F, 5G
Motor Accidents Compensation Act 1999 (NSW) s 138

DECISION:
1. Appeal allowed in part and dismissed in part
2. The judgment of the trial judge to be varied so as to take account of the assessment of contributory negligence and the variations to the award of damages that are required by the conclusions I have reached on Grounds 3 and 4
3. The parties to bring in short minutes of order within seven days of the date of this judgment in accordance with the reasons for judgment
4. The appellants are to pay 80 per cent of the respondent’s costs of the appeal. 

JUDGMENT:

- 40 -

IN THE SUPREME COURT  
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40795/05

BEAZLEY JA
IPP JA
BRYSON JA

11 December 2006

KEITH BRUCE EVANS AND QUALITY BAKERS AUSTRALIA LIMITED TRADING AS RIGA BAKERIES
v
STUART JAMES LINDSAY BY HIS NEXT FRIEND ROBERT BRYDEN

Headnote

Facts

The respondent was walking along the middle of Kangaloon Road, Bowral, having earlier left the Bowral Hotel in an inebriated condition, when he was hit by a truck owned by the second appellant and driven by the first appellant and sustained severe brain injuries.  The accident occurred in the early hours of 27 February 2000, in conditions that were dark and wet but illuminated by streetlights and the vehicle’s low beam headlights.  The first appellant had not previously driven along the road, which was in a built-up area, and had been driving within the speed limit of 60 kph.

The trial judge found that the first appellant was negligent as he was driving too fast for the conditions and was…