Ning v McGrath

[2015] ACTSC 163

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Ning v McGrath

Citation:

[2015] ACTSC 163

Hearing Date(s):

18 June 2015

DecisionDate:

2 July 2015

Before:

Murrell CJ

Decision:

Appeal allowed.

Category:

Principal Judgment

Catchwords:

APPEAL AND NEW TRIAL – Motor vehicle accident – delay in delivering judgment – motorcycle poorly illuminated – failure to keep proper lookout – contributory negligence

Legislation Cited:

Evidence Act 2011 (ACT) s 54

Magistrates Court Act 1930 (ACT) pt 4.5

Cases Cited:

Fox v Percy (2003) 214 CLR 118

Goreski v de Costa [2014] ACTSC 233
Klobucar v The Queen [2014] ACTCA 6
Leishman v Thomas (1957) 75 WN (NSW) 173
Monie v Commonwealth of Australia (2005) 63 NSWLR 729
Podrebersek v Australian Iron and Steel (1985) 59 ALR 529

Sibley v Kais (1967) 118 CLR 424

Parties:

Stephen Ning (Appellant)

Aaron James McGrath (Respondent)

Representation:

Counsel

Mr I Roberts SC (Appellant)

Mr S Whybrow (Respondent)

Solicitors

Sparke Helmore Lawyers (Appellant)

Maurice Blackburn Lawyers (Respondent)

File Number(s):

SCA 77 of 2014

Decision under appeal: 

Court/Tribunal:             ACT Magistrates Court

Before:  Magistrate Dingwall

Date of Decision:         19 August 2014

Case Title:  McGrath v Ning

Court File Number(s):   CS 997 of 2012

MURRELL CJ:

Background

1. At 6:24 pm (after dark) on 15 May 2008, the respondent was injured when his motorcycle collided with the appellant’s motor vehicle.  The accident occurred as the appellant was making a right hand turn into a T-intersection at Barraclough Crescent.  The respondent was approaching the intersection along Barraclough Crescent, from the appellant’s right side.

1. The respondent brought proceedings in the Magistrates Court.  At the hearing, the respondent contended that the appellant had breached his duty of care by failing to keep a proper lookout and failing to give way. The appellant accepted that, when making the right turn, he had a duty to give way to traffic proceeding along Barraclough Crescent.  However, he argued that he had discharged his duty of care to the respondent; he had looked to the right before turning into Barraclough Crescent.  He said that he had failed to see the respondent because the respondent had been wearing dark clothing and riding a motorcycle with a poorly illuminated headlight.  Alternatively, the appellant contended that the respondent was guilty of contributory negligence.

1. The primary judge received evidence in February and April 2013.  In April 2013, the primary judge viewed the scene of the collision in circumstances that were not materially different to those that prevailed at the time of the accident.  Written submissions were provided by 20 June 2013.  The primary judge reserved his decision until 19 August 2014, when his Honour found that the appellant had breached his duty of care, and there had been no contributory negligence by the respondent.  His Honour gave judgment for the respondent in the sum of $193,150.45.

1. The appellant appealed against the findings on primary liability and contributory negligence. There was no appeal against the assessment of damages.

Grounds of appeal

1. In the Amended Notice of Appeal, the appellant raised grounds…