Herne Investments (NSW) Pty Ltd v Don Watson Pty Ltd

Herne Investments (NSW) Pty Ltd (the appellant) brought proceedings against Don Watson Pty Ltd (the first respondent) and another party (the second respondent) concerning damage to a truck. The dispute arose from a collision where the appellant's truck, travelling in the slow lane of a highway, failed to merge into an overtaking lane and collided with a guard rail. The appellant alleged that the driver of the truck in the overtaking lane breached their duty of care by failing to give way, and that the primary judge had erred in finding this driver not to be in breach and in failing to give adequate weight to video footage of the incident. The proceedings were heard in the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the primary judge had erred in finding that the driver of the truck in the overtaking lane was not in breach of their duty of care by failing to give way to the appellant's truck, and whether the primary judge had failed to give adequate weight to the video footage of the accident. The court was also asked to consider whether the primary judge had erred in finding the driver of the slow lane truck solely responsible for the accident. Additionally, the court considered whether the appellant was justified in not accepting an offer of compromise in relation to costs.

The Court of Appeal dismissed the appeal, finding no error in the primary judge's determination. The court held that the driver in the overtaking lane was not obliged to give way to the appellant's truck, which was failing to merge. The court found that the primary judge had properly considered the video footage and that the evidence supported the conclusion that the appellant's driver was solely responsible for the collision due to their failure to merge correctly. The cross-appeal was also dismissed, and the appellant was ordered to pay the first and second respondents' costs of the appeal, with no order as to the costs of the cross-appeal.