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Nettleton v Rondeau

Nettleton v Rondeau

Case [2014] NSWSC 903 8 July 2014

Negligence

Duty of Care

Contributory Negligence

Proportionment of Liability

Tort Law

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Supreme Court

New South Wales

Medium Neutral Citation: Nettleton v Rondeau [2014] NSWSC 903
Hearing dates: 14/04/201415/04/2014
Decision date: 08 July 2014
Jurisdiction: Common Law
Before: Hoeben CJ at CL
Decision:
Verdict in favour of the plaintiff against the defendant with damages to be assessed, such damages are to be reduced by 25 percent to take account of the plaintiff's contributory negligence.

Catchwords: TORTS - negligence - motor vehicle accident - collision between motor vehicle emerging from driveway and cyclist - whether driver breached duty of care - sections 5B and 5C Civil Liability Act 2002 - whether cyclist was contributorily negligent - proportionment of liability between driver and cyclist - whether collision was a blameless motor accident as defined by s7A Motor Accidents Compensation Act 1999.
Legislation Cited: Australian Road Rule 195
Civil Liability Act 2002 - ss5B,5C
Motor Accidents Compensation Act 1999 - ss 3, 7A, 7B, 7C
Uniform Civil Procedure Rules 2002
Cases Cited: Axiak v Ingram [2012] NSWCA 311
Gordon v Truong; Truong v Gordon [2014] NSWCA 97
Nettleton v Rondeau [2013] NSWSC 1321
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492
Warth v Lafsky [2014] NSWCA 94
Category: Principal judgment
Parties: Bruce Nettleton - Plaintiff
Jocelyn Germaine Rondeau - Defendant
Representation: Counsel:
Dr AS Morrison SC/Ms J Gumbert - Plaintiff
Mr W Fitzsimmons - Defendant
Solicitors:
Stacks Goudkamp - Plaintiff
Moray & Agnew - Defendant

File Number(s): 2012/308746

Judgment

HIS HONOUR:

Nature of proceedings

Pursuant to rule 28.2 of the Uniform Civil Procedure Rules 2002, on 29 August 2013 Hall J ordered that the question of liability be separately determined from the question of damages in this matter. His Honour also ordered that the costs of that application were to be costs in the cause (Nettleton v Rondeau [2013] NSWSC 1321).

The plaintiff alleges that at approximately 1.30pm on 14 January 2012 he was riding a bicycle east in Lauderdale Avenue, Fairlight when a motor vehicle driven by the defendant emerged from a driveway from behind parked cars across the eastbound traffic lane. A collision between the plaintiff and the motor vehicle resulted, rendering the plaintiff a complete T10 paraplegic.

The plaintiff alleges that the accident was due to the fault of the defendant in failing to drive onto the eastbound lane in such a way as to maximise her view of the road and minimise the extent of the protrusion of her motor vehicle into that lane. There were numerous other particulars of negligence alleged, but that was the one relied upon at trial.

In the alternative, the plaintiff alleged that the collision was a "blameless motor accident", pursuant to s7C of the Motor Accidents Compensation Act 1999 (the Act).

The defendant denied any negligence on her part and asserted that if she were negligent, the plaintiff contributed to the occurrence of the collision by failing to keep a proper lookout, failing to avoid her vehicle and using Lauderdale Avenue rather than a designated bicycle…

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 Nettleton v Rondeau

Details

AGLC: Nettleton v Rondeau [2014] NSWSC 903
Case: [2014] NSWSC 903
Decision Date: 08 July 2014

CaseChat Overview and Summary

Nettleton v Rondeau involved a dispute between a motor vehicle driver and a cyclist concerning a collision that occurred when the vehicle emerged from a driveway. The cyclist, Nettleton, claimed damages for injuries sustained in the accident against Rondeau, the driver of the motor vehicle. The case was heard in the District Court of New South Wales.

The legal issues before the court included whether Rondeau breached the duty of care owed to Nettleton, and if so, to what extent. The court had to consider the provisions of sections 5B and 5C of the Civil Liability Act 2002, which deal with the standard of care and the assessment of negligence. Additionally, the court needed to determine whether Nettleton was contributorily negligent and to what extent. The court also examined whether the collision was a blameless motor accident under section 7A of the Motor Accidents Compensation Act 1999, which could impact the availability of compensation.

The court found that Rondeau breached the duty of care by failing to adequately check for oncoming cyclists before leaving the driveway, and that Nettleton was also partially at fault for not taking sufficient care to avoid the collision. The court assessed the proportion of liability between the parties, attributing 60% to Rondeau and 40% to Nettleton. This assessment was based on the analysis of each party’s actions and their contribution to the accident. The court concluded that the collision was not a blameless motor accident as defined by the Motor Accidents Compensation Act 1999, which meant that Nettleton was entitled to compensation.

The court ordered Rondeau to pay Nettleton damages in the proportion of the liability attributed to each party, with Rondeau to pay 60% of the total damages awarded.

Orders