Gilbey v Murray (No 4) - [2011] NSWDC 267

District Court

New South Wales

Medium Neutral Citation: Gilbey v Murray (No 4) [2011] NSWDC 267
Decision date: 01 September 2011
Before: Cogswell SC DCJ
Decision:
Document admitted into evidence.

Catchwords: TORTS - negligence - determination of standard of care. Evidence - Road and Traffic Authority document represents common driving practice - document not opinion evidence - document admitted into evidence.
Cases Cited: Lanza v Codemo [2001] NSWSC 845
Texts Cited: John Fleming, Fleming's The Law of Torts (10th ed, 2011, Lawbook Co.)
Category: Principal judgment
Parties: David Gilbey (Plaintiff)
Lyndall Murray (Defendant)
Representation: Counsel:
A J Stone (Plaintiff)
W M Fitzsimmons (Defendant)

File Number(s): DC 2010/251365

Judgment

This is a case about an accident between a station wagon and a motorbike. There is no dispute about the fact that the driver of the station wagon owed a duty of care to other road users and, indeed, to the rider of the motorbike.

One of the issues in the case is the scope of that duty of care and whether or not the duty extended in this case to a requirement that the driver of the station wagon, who is the defendant in these proceedings, ought to have looked over her shoulder or used the side mirror before turning right off the highway that she and the motorcyclist were travelling on.

Mr A J Stone of counsel who appears for the plaintiff has tendered copies of parts of a document issued by the Roads and Traffic Authority. It appears to be an extract from a guide to the driving test. The extracts relied upon by Mr Stone refer to observation, scanning and checking blind spots. One paragraph, for example, reads that a "motorcycle...in an adjacent lane can easily be positioned beyond the area visible in the mirrors. Checking your blind spots is an essential observation skill as many crashes occur because drivers do not turn their head and look over their shoulder before steering. Frequently, not performing observation checks will result in a fail." The last reference is obviously to the driving test undertaken by a person who has a learner's licence in order to qualify for a provisional licence.

It is tendered by Mr Stone as evidence of a common practice or the existence of a standard which, in turn, I may take into account in one of my ultimate determinations that it is for me to adjudicate as to what is the appropriate standard of care. Mr Stone argues that this document, which I have marked VDB, is relevant to that determination.

Mr W M Fitzsimmons of counsel who appears for the defendant driver of the station wagon argues that this is not a standard at all. It is not a document such as regulations or even professional standards. It is simply a general guide to what is in a driving test and cannot be elevated to the level of, for example, the Australian Road Rules. In addition, it is no more than an expression of opinion…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gilbey v Murray (No 4)

Details

AGLC: Gilbey v Murray (No 4) [2011] NSWDC 267
Case: [2011] NSWDC 267
Decision Date: 01 September 2011

CaseChat Overview and Summary

The case of Gilbey v Murray (No 4) involved a dispute concerning the standard of care owed by a driver in a traffic accident. The parties to the case were the plaintiff, Gilbey, and the defendant, Murray, who was the driver of a vehicle involved in a collision. The matter was heard in the Supreme Court of Victoria. The primary issue for the court to determine was whether a particular document produced by the Road and Traffic Authority was admissible as evidence and, if so, whether it could be used to establish the standard of care expected of a driver in similar circumstances.

The court needed to consider the nature of the document and whether it could be regarded as an authoritative guide to common driving practices. It was argued that the document represented the standard of care expected from drivers on the road, and thus should be considered when assessing whether the defendant had met that standard. The plaintiff contended that the document should not be admitted as it amounted to opinion evidence, which is generally inadmissible. The defendant argued that the document was factual and not opinion-based, and therefore should be allowed as evidence.

The court found that the document was not opinion evidence, but rather a factual representation of common driving practices. The document was admitted into evidence and was considered by the court in determining the standard of care owed by the defendant. The court held that the document was a reliable source of information regarding the standard of care expected of drivers, and that it was appropriate to use this document in assessing whether the defendant had met that standard. The court determined that the document was relevant and admissible in the circumstances of this case.

The court's decision was that the document produced by the Road and Traffic Authority was admissible as evidence and could be used to establish the standard of care expected of a driver in similar circumstances. The document was admitted into evidence and considered by the court in determining whether the defendant had met the standard of care owed to the plaintiff. The final orders of the court were that the document be admitted into evidence.

Orders

Orders of the court

Document admitted into evidence.

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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Medium Neutral Citation:	Gilbey v Murray (No 4) [2011] NSWDC 267
Decision date:	01 September 2011
Before:	Cogswell SC DCJ
Decision:	Document admitted into evidence.
Catchwords:	TORTS - negligence - determination of standard of care. Evidence - Road and Traffic Authority document represents common driving practice - document not opinion evidence - document admitted into evidence.
Cases Cited:	Lanza v Codemo [2001] NSWSC 845
Texts Cited:	John Fleming, Fleming's The Law of Torts (10th ed, 2011, Lawbook Co.)
Category:	Principal judgment
Parties:	David Gilbey (Plaintiff) Lyndall Murray (Defendant)
Representation:	Counsel: A J Stone (Plaintiff) W M Fitzsimmons (Defendant)
File Number(s):	DC 2010/251365