Goreski v de Costa

[2014] ACTSC 233

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Goreski v de Costa

Citation:

[2014] ACTSC 233

Hearing Date(s):

31 July 2014

DecisionDate:

1 August 2014

Before:

Murrell CJ

Decision:

Appeal dismissed.

Category:

Principal Judgment

Catchwords:

APPEAL – Negligence – motor vehicle accident – motorcycle in bicycle lane – failure to keep a proper lookout – no breach of duty of care

Legislation Cited:

Magistrates Court Act 1930 (ACT) s 274

Cases Cited:

Fox v Percy (2003) 214 CLR 118

Sibley v Kais (1967) 118 CLR 424
Warren v Coombs (1979) 142 CLR 531

Parties:

Joko Goreski ( Appellant)

Greg Thomas de Costa (First Respondent)

AAI Limited t/as AAMI (Second Respondent)

Representation:

Counsel

Mr B Meagher SC with Mr W Sharwood ( Appellant)

Mr P Deakin QC with Mr A Davis (First and Second Respondents)

Solicitors

Maurice Blackburn Lawyers ( Appellant)

Hunt & Hunt (First and Second Respondents)

File Number(s):

SCA 1 of 2014

Decision under appeal: 

Court:  Magistrates Court of the ACT

Before:  Chief Magistrate Walker

Date of Decision:         23 December 2013

Case Title:  Goreski v de Costa

Court File Number(s):   CS 12/924

MURRELL CJ:

Introduction

1. At about 4.45 pm on 22 October 2009 at the intersection of Tom Price Street and Canberra Avenue in Fyshwick in the Australian Capital Territory, a motorcycle being driven by Mr Goreski (the appellant) collided with a motor vehicle being driven by Mr de Costa (the respondent).  The appellant was injured.

1. The intersection is illustrated at pages 587 and 628 (marked by the respondent), page 689 (marked by the independent witness, Mr Urban) and at other places in the Appeal Book (AB).

1. The appellant approached the intersection from the west (heading towards Queanbeyan).  Inferentially, the lights of the motorcycle were illuminated: AB at 710. Contrary to traffic regulations, the appellant drove in a lane reserved for bicycles.  The west-facing traffic lights (facing towards the appellant and governing vehicles that intended to move straight through the intersection rather than turn left) were red.  Three lanes of traffic heading west were stationary at the lights.  The appellant slowed to about 40 kilometres per hour (kph).  As soon as the lights turned green, he accelerated rapidly to 60–80 kph, “gunning it” through the intersection so that he could move from the bicycle lane back into the kerbside vehicle lane before the stationary traffic moved off from the lights.  The appellant’s conduct of overtaking to the left breached the traffic regulations. It was not until the last moment that the appellant saw the respondent’s vehicle entering the intersection from his left.  He braked, managing to slow to about 40kph by the time of impact.

1. The respondent approached the intersection from the north, intending to turn east (left) into Canberra Avenue and travel in the same direction as the appellant.  His turn was governed by a “give way” sign, which required him to give way to traffic travelling in the direction in which the appellant’s motorcycle was travelling.  The respondent looked to the right twice.  Although there…