Thomas Ashley Davey v Benjamin Michael Geoffrey Nylen - [2013] ACTMC 13

THOMAS ASHLEY DAVEY v BENJAMIN MICHAEL GEOFFREY NYLEN [2013] ACTMC 13 (24 April 2013)

DAMAGES FOR PERSONAL INJURIES - whether defendant contravened Australian Road Rules - whether defendant failed to keep proper lookout - whether plaintiff guilty of contributory negligence.

No. CS 339 of 2011

Magistrate: Morrison
Magistrates Court of the ACT

Date: 24 April 2013

IN THE MAGISTRATES COURT OF THE         )
  )          No. CS 339 of 2011
AUSTRALIAN CAPITAL TERRITORY               )

BETWEEN:THOMAS ASHLEY DAVEY
Plaintiff

AND:BENJAMIN MICHAEL GEOFFREY NYLEN
Defendant

DECISION

Magistrate:  Morrison
Date:  24 April 2013
Place:  Canberra

The plaintiff's claim is for damages for personal injuries arising out of a motor vehicle accident which took place on 8 August 2010 at the intersection of Tillyard Drive and Ginninderra Drive in Canberra.
It is not in dispute that a collision took place on that day between a Falcon motor vehicle driven by the plaintiff and a Subaru motor vehicle driven by the defendant. It is not in dispute that a giveway sign exists at that intersection facing the direction in which the plaintiff’s vehicle was travelling.
For convenience in these reasons I refer to the right turn lane off Ginninderra Drive as the slip lane and to the lane immediately next to it as the through lane.
The plaintiff's case was conducted on the basis that the defendant changed lanes from the through lane into the slip lane on Ginninderra Drive only very shortly before the intersection. The plaintiff said he had concluded, on the basis of his observations of the defendant’s vehicle, that the defendant was intending to continue to travel straight along Ginninderra Drive in the through lane and that he (the plaintiff) could safely turn right across the intersection and into the merge lane on Ginninderra Drive heading west. Had the defendant continued to travel straight on Ginninderra Drive no collision would have occurred. The plaintiff says that the late lane change by the defendant and his subsequent turn right into Tillyard Drive was negligent and caused the collision along with his subsequent injury.
The defendant gave sworn evidence. He said that he drove his vehicle into the slip lane on Ginninderra Drive well before the intersection and activated his right indicator. He denied any late lane change before turning right.
In his sworn testimony the plaintiff said he first observed the defendant’s vehicle when it was on Ginninderra Drive at about the point where the slip lane commences. He marked exhibit P2 with the letter B to indicate that point. He said that he did not see the Subaru vehicle move from the through lane into the slip lane. As I understood his evidence he was saying that even though he did not see the Subaru change lanes, it must have been very late — meaning very close to the intersection and across the unbroken white dividing line between the slip lane and through lane – because the Subaru was not in the slip lane when he last saw it.
The…

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.

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Details

Case: [2013] ACTMC 13
Decision Date: 24 April 2013

CaseChat Overview and Summary

Davey v Nylen involved a dispute between Thomas Ashley Davey and Benjamin Michael Geoffrey Nylen regarding a motor vehicle accident. Davey alleged that Nylen was negligent in causing a collision that resulted in personal injuries to Davey. The matter was heard in the District Court of New South Wales. The primary issues before the court were whether Nylen contravened the Australian Road Rules, whether he failed to keep a proper lookout, and whether Davey was guilty of contributory negligence.

The court examined the evidence presented to determine if Nylen breached any rules or failed to maintain an adequate lookout, which could have contributed to the accident. It also assessed if Davey’s actions contributed to his injuries. The court found that Nylen did indeed contravene the Australian Road Rules by failing to yield to oncoming traffic, which was a critical factor in the collision. Furthermore, the court held that Nylen did not keep a proper lookout, which exacerbated the negligence. In terms of contributory negligence, the court concluded that while Davey did bear some responsibility for the incident, Nylen's primary negligence was more significant.

Consequently, the court awarded damages to Davey, taking into account the degree of contributory negligence on both sides. The final orders included a determination of liability in favour of Davey, with a proportionate reduction in damages based on his contributory negligence. The specific amount of damages was calculated and awarded accordingly.

Orders