Does every action have consequences? Breach of duty of care only established where the act or omission caused the injury or harm – Dent v Calcagno [2016] NSWCA 289

The plaintiff was driving his motorcycle north along Queens Pinch Road (near Mudgee), at, or close to, the speed limit of 100 km/h. The defendant was also travelling north along Queen Pinch Road at 15 km/h.

As the plaintiff attempted to overtake the defendant's vehicle, the defendant commenced a right-hand turn into her drive way. The motorcycle struck the driver-side door of the defendant's vehicle, ejecting him from his motorcycle and causing severe injuries.

At trial, the primary judge found that breach of duty of care had been established because the defendant had failed to look in her rear vision or side mirrors prior to activating the right-turn indicator. His Honour concluded that "had she looked, she would have seen the plaintiff's motorcycle, and stopped her slow moving vehicle before turning thereby avoiding a collision".²

There was a 25% reduction for contributory negligence. This is because the rural properties in the area suggest that vehicles would be entering and leaving properties regularly and the plaintiff should have heeded that possibility. His Honour opined, "in the circumstances I find that the plaintiff was travelling at an excessive speed for him to do so, and was too close to the defendant's slow moving vehicle".³

The defendant appealed to the New South Wales Court of Appeal (Court of Appeal).

The expert evidence was important as this was a highly circumstantial case. The defendant did not see the plaintiff, and the plaintiff suffered amnesia as a result of the head injuries he sustained.⁴

The trial judge accepted that the defendant's right-turn indicator had been activated. The two contested factual issues at trial were:

Emphasis was on the former question.

Indicator

The joint report of the experts of each party accepted that if the defendant activated her right-turn indicator for at least five seconds, "the crash was probably avoidable".⁵ Hence, the time at which the right-turn indicator was activated became crucial.

The defendant alleged that she activated her right-turn indicator as she passed a hazard or yellow road sign. This was 27 m from the turning point into her driveway. This would have meant that the indicator was on for 6.5 – 9.7 seconds, above the five second minimum required on the expert evidence to avoid the collision. However, the plaintiff alleged that the right-turn indicator was only activated 10 m before the turning point. This would have meant the right-turn indicator was only on for a total of three seconds.

The primary judge preferred the 10 m version, on the basis that the defendant's allegation about activating the indicator at the hazard or yellow sign was unreliable.

On appeal, Basten JA rejected the finding that the defendant's evidence was unreliable. His Honour observed that the alternative that the defendant had commenced turning 10 m out "was never put to the [defendant] in cross-examination".⁶ Sackville AJA, who agreed with Basten JA, noted that although the defendant's estimates as to time and distance varied, she always maintained that she activated the right-turn indicator at or about the yellow sign.⁷

Failure to check road behind

Basten JA queried what the defendant should or could have done if she had checked her rear vision mirror. His Honour observed that this was not fully explored at trial. To stop would be to reduce the time to impact; to deviate may confuse the plaintiff. Basten JA was critical of the suggestion that the defendant should have stopped, opining that this, "would probably have been extremely dangerous and a breach of duty of care".⁸

If the defendant had indicated from the yellow sign, and there was no reason to doubt her account, then there is no reason why not looking into the rear vision mirror would have caused the accident.⁹

Sackville AJA largely agreed with Basten JA. His Honour added that not looking into the rear vision mirror was not a breach of duty of care. The defendant complied with the Road Rules 2008 (NSW): "There was no evidence from the experts that the appellant's failure to look behind her involved a departure from the standard of care reasonably to be expected of a driver…"¹⁰

Macfarlan JA agreed with Basten JA and Sackville AJA and the defendant's appeal was allowed.

In highly circumstantial cases, insurers must obtain and adduce evidence carefully. It is important for insurers to put their case theory or allegation to the plaintiff (or other witnesses), and allow them an opportunity to respond.

To establish liability, the plaintiff must demonstrate that any breach of duty of care by the defendant caused the plaintiff's injury, loss or damage. Mere breach of duty of care is insufficient. Causation must also be established.

A useful way to examine causation is to ask the 'but for' question – 'but for' the act or omission would the injury have occurred? It is not enough to go through the question and answer in a mechanical fashion. For example, the defendant could have stopped, however, on closer examination this may not have avoided the accident.