Hathaway & Anor v Thorpe bht Kinghorn

In Hathaway & Anor v Thorpe, the appellants, the driver and owner of a motor vehicle, appealed a decision of the primary judge who found them liable for injuries sustained by the respondent cyclist in a motor vehicle accident. The respondent was riding his bicycle at night without lights, contrary to Australian Road Rule 259, and the second appellant was attempting a right turn at the time of the collision.

The central legal issues before the Court of Appeal were whether the primary judge erred in finding the second appellant negligent and, if so, whether the apportionment of contributory negligence, which attributed 70 percent to the appellants and 30 percent to the respondent, was too low. The appellants argued that the respondent's failure to have lights on his bicycle should have resulted in a finding of 100 percent contributory negligence or, at least, a greater proportion than 30 percent.

The Court of Appeal, comprising Santow JA, Ipp JA, and McColl JA, considered the evidence presented at trial and on appeal. The primary judge had found that while the respondent was guilty of contributory negligence due to riding without lights and awareness of the associated risks, the second appellant's failure to take reasonable care in executing her right-hand turn was a significant factor. The primary judge noted that the second appellant, despite having her lights on and indicating her turn, may have failed to see the respondent due to prevailing light conditions or the angle of approach. The Court also considered expert evidence regarding stopping distances and visibility, and the second appellant's own evidence about when she first saw the respondent. The appellants' attempt to rely on expert evidence to argue that the second appellant could not have avoided the accident if she had seen the respondent earlier was met with difficulties, particularly given the second appellant's own account of events.

The appeal was dismissed, and the appellants were ordered to pay the costs of the appeal. The Court of Appeal upheld the primary judge's findings regarding the apportionment of liability, implicitly agreeing that the second appellant's failure to exercise reasonable care in making the turn contributed to the accident, and that the respondent's contributory negligence did not warrant a higher apportionment.