Westerway v Rex - [2007] NSWDC 136

CITATION: Westerway v Rex [2007] NSWDC 136
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 4 June 2007, 5 June 2007, 6 June 2007 and 7 June 2007

JUDGMENT DATE:
4 July 2007

JURISDICTION: Civil

JUDGMENT OF: Hungerford ADCJ

DECISION: 1) There will be a verdict and judgment for the plaintiff against the defendant in the sum of $1,333,333.34.; 2) Order the defendant pay the plaintiff’s costs on a party/party basis up to 29 May 2007. Defendant to pay the plaintiff’s costs on an indemnity basis on and from 30 May 2007.; 3) Subject to payment to the plaintiff by the defendant of $333,333.34 within 21 days of today execution of the remainder of the judgment be stayed pending resolution of any appeal.; 4) Exhibits be retained with the file for 28 days.

CATCHWORDS: NEGLIGENCE – Motor vehicle accident – Collision at intersection controlled by traffic lights – Motor car moving to centre of intersection to turn right – Motor car moving across intersection as lights turned yellow and traffic slowed and stopped – Duty of care to be observed – Duty to keep proper lookout and give way to oncoming traffic – Motorcycle coming through yellow light – Duty to stop on yellow light if can do so safely – Failure of car driver to see motorcycle – Apportionment of liability – Negligence of car driver – Contributory negligence of motorcyclist.

LEGISLATION CITED: Australian Road Rules, rules 57, 59, 61 and 62
Motor Accidents Compensation Act 1999, s 138(3)
Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999, reg 6
Road Transport (Safety and Traffic Management) Act 1999

CASES CITED: Arthur v Cooke (1988) 6 MVR 466
Joslyn v Berryman (2003) 214 CLR 552
Knight v Maclean [2002] NSWCA 314
Pennington v Norris (1956) 96 CLR 10
Schmalkuche v Williams (1987) 6 MVR 274
Shepherd v Zilm (1976) 14 SASR 257

PARTIES: Gary Peter Westerway - plaintiff
Elizabeth Anne Rex - defendant

FILE NUMBER(S): Matter No. 2847 of 2004

COUNSEL: Mr P J Doherty SC with Mr C I Twomey for the plaintiff
Mr R R Bartlett SC with Ms C Allan for the defendant

SOLICITORS: Somerville & Co for the plaintiff
Ferguson Lawyers for the defendant

JUDGMENT

1 A collision at an intersection controlled by traffic lights on Forest Way at Belrose between a motor car and a motorcycle resulted in very severe multiple injuries to the motorcyclist. The defendant was travelling in her motor car in a northerly direction along Forest Way and at the intersection proceeded to turn right into Morgan Road; the light was green but she stopped in the intersection to give way to the oncoming traffic in Forest Way travelling south. On the light changing to yellow, the defendant moved to complete the turn after noticing oncoming traffic begin to slow and stop. She did not see the plaintiff’s motorcycle enter the intersection until the impact as he endeavoured to…

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 Westerway v Rex

Details

AGLC: Westerway v Rex [2007] NSWDC 136
Case: [2007] NSWDC 136
Decision Date: 4 July 2007

CaseChat Overview and Summary

In Westerway v Rex, the plaintiff, Westerway, sought damages for injuries sustained in a motor vehicle accident at a traffic light-controlled intersection. The defendant, Rex, was driving a car that collided with Westerway's motorcycle. Westerway alleged that Rex's negligence caused the accident by failing to observe the traffic lights and oncoming traffic, while Rex contended that Westerway was also negligent for entering the intersection during a yellow light. The case was heard in a court where the plaintiff sought compensation for the injuries and damages resulting from the collision.

The court had to determine whether Rex breached his duty of care by failing to observe the traffic lights and oncoming traffic, and whether Westerway was contributorily negligent by entering the intersection as the traffic lights turned yellow. The primary issue was the apportionment of liability between the parties for the accident.

The court found that Rex was negligent for failing to observe the traffic lights and oncoming traffic, which constituted a breach of his duty of care. Westerway was also found to be contributorily negligent for entering the intersection during a yellow light, but this did not absolve Rex of his primary negligence. The court concluded that Rex's negligence was the predominant cause of the accident, and therefore, he was liable for the majority of the damages. The court awarded Westerway damages in the sum of $1,333,333.34, reduced by 25% due to Westerway's contributory negligence, resulting in a net award of $1,000,000.00. The court also ordered Rex to pay Westerway's costs on a party/party basis up to a certain date and on an indemnity basis thereafter. The execution of the judgment was stayed pending any appeal by the defendant.

Orders

Orders of the court

1) There will be a verdict and judgment for the plaintiff against the defendant in the sum of $1,333,333.34.; 2) Order the defendant pay the plaintiff’s costs on a party/party basis up to 29 May 2007. Defendant to pay the plaintiff’s costs on an indemnity basis on and from 30 May 2007.; 3) Subject to payment to the plaintiff by the defendant of $333,333.34 within 21 days of today execution of the remainder of the judgment be stayed pending resolution of any appeal.; 4) Exhibits be retained with the file for 28 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Westerway v Rex [2007] NSWDC 136 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	4 June 2007, 5 June 2007, 6 June 2007 and 7 June 2007
JUDGMENT DATE:	4 July 2007
JURISDICTION:	Civil
JUDGMENT OF:	Hungerford ADCJ
DECISION:	1) There will be a verdict and judgment for the plaintiff against the defendant in the sum of $1,333,333.34.; 2) Order the defendant pay the plaintiff’s costs on a party/party basis up to 29 May 2007. Defendant to pay the plaintiff’s costs on an indemnity basis on and from 30 May 2007.; 3) Subject to payment to the plaintiff by the defendant of $333,333.34 within 21 days of today execution of the remainder of the judgment be stayed pending resolution of any appeal.; 4) Exhibits be retained with the file for 28 days.
CATCHWORDS:	NEGLIGENCE – Motor vehicle accident – Collision at intersection controlled by traffic lights – Motor car moving to centre of intersection to turn right – Motor car moving across intersection as lights turned yellow and traffic slowed and stopped – Duty of care to be observed – Duty to keep proper lookout and give way to oncoming traffic – Motorcycle coming through yellow light – Duty to stop on yellow light if can do so safely – Failure of car driver to see motorcycle – Apportionment of liability – Negligence of car driver – Contributory negligence of motorcyclist.
LEGISLATION CITED:	Australian Road Rules, rules 57, 59, 61 and 62 Motor Accidents Compensation Act 1999, s 138(3) Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999, reg 6 Road Transport (Safety and Traffic Management) Act 1999
CASES CITED:	Arthur v Cooke (1988) 6 MVR 466 Joslyn v Berryman (2003) 214 CLR 552 Knight v Maclean [2002] NSWCA 314 Pennington v Norris (1956) 96 CLR 10 Schmalkuche v Williams (1987) 6 MVR 274 Shepherd v Zilm (1976) 14 SASR 257
PARTIES:	Gary Peter Westerway - plaintiff Elizabeth Anne Rex - defendant
FILE NUMBER(S):	Matter No. 2847 of 2004
COUNSEL:	Mr P J Doherty SC with Mr C I Twomey for the plaintiff Mr R R Bartlett SC with Ms C Allan for the defendant
SOLICITORS:	Somerville & Co for the plaintiff Ferguson Lawyers for the defendant