Rhonda Payne v Lee Ronald Witt

District Court

New South Wales

Medium Neutral Citation:	Rhonda Payne v Lee Ronald Witt [2017] NSWDC 78
Hearing dates:	13 December 2016 to 15 December 2016, 15 and16 March 2017
Decision date:	11 April 2017
Jurisdiction:	Civil
Before:	Mahony SC DCJ
Decision:	Verdict and judgment for the plaintiff. For orders see [165]
Legislation Cited:	Civil Liability Act 2002, ss 3B, 5R, 5S Motor Accidents Compensation Act 1999 (NSW), ss 126, 138, 141B Road Rules 2008, reg 74
Cases Cited:	Blacktown City Council v Hocking [2008] NSWCA 144 Davis v Swift [2014] NSWCA 458 Dessent v Commonwealth of Australia (1977) 13 ALR 437 Gordon v Truong [2014] NSWCA 97 Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 Hickson v Goodman Fielder [2009] HCA 11 Kallouf v Middis [2008] NSWCA 61 Malec v J C Hutton Pty Limited (1990) 169 CLR 638 Mead v Kerney [2012] NSWCA 215 Medlin v The State Government Insurance Commission (1995) 182 CLR 1 Nominal Defendant v Livaja [2011] NSWCA 121 Penrith City Council v Parks [2004] NSWCA 381 Townsend v O’Donnell [2016] NSWCA 288 Verryt v Schoupp [2015] NSWCA 128 Wade v Allsopp (1976) 10 ALR 353
Category:	Principal judgment
Parties:	Rhonda Payne (Plaintiff) Lee Ronald Witt (Defendant)
Representation:	Counsel: D Campbell SC/I Bradfield (Plaintiff) D Ronzani (Defendant)   Solicitors: RMB Lawyers Hunt & Hunt
File Number(s):	13/288343
Publication restriction:	Nil

Judgment

Introduction

1. The plaintiff claims damages for injuries she received on 13 December 2011 during her work as a postal delivery officer in Yass, New South Wales. She was riding her work motorcycle along the nature strip of Lead Street, Yass, having delivered mail to premises at 34 Lead Street. As she approached the next house, she crossed the driveway of that property, and whilst doing so, was struck by a vehicle driven by the defendant, who was driving out of the driveway towards Lead Street.

2. The defendant admitted breach of his duty of care to the plaintiff. However, adjacent to the driveway, and between the defendant’s property and the neighbouring property, was a hedge which obstructed the defendant’s view of vehicles coming in the direction that the plaintiff’s motorcycle was travelling, namely, from the defendant’s right-hand side. The defendant has alleged contributory negligence on the part of the plaintiff and relies on the following particulars of negligence:

1. “Failing to keep a proper lookout.

2. Failing to exercise any proper care when travelling along the nature strip and crossing the driveway.

3. Failing to observe the defendant’s vehicle.

4. Travelling at a speed excessive in the circumstances.

5. Failing to take any reasonable, or any care when travelling past a blind driveway, particularly given the plaintiff’s experience as a mail woman at the accident location.

6. Failing to exercise reasonable care for her own safety.

7. Failing to take evasive action and driving into the defendant’s vehicle.

8. Failing to take action to avoid the defendant’s vehicle.

9. Failing to warn of her approach whether by sounding her horn or otherwise.

10. Being inattentive.”

Issues to be determined

3. The following issues are to be…