The role of the 'lethal weapon' in assessing contributory negligence takes a new turn
Originally Published by Andrew Gorman and Lily Barbouttis on Friday, August 23, 2019 8:51:50 AM
When assessing contributory negligence in motor accident cases, the type of vehicles involved and their potential to cause harm remains relevant when weighing up the culpability of the parties, but to whose peril? The Court of Appeal has adopted a different perspective in Ayre v Swan.
Author: Lily Barbouttis
Judgment date: 16 August 2019
Citation: Ayre v Swan [2019] NSWCA 202
Jurisdiction: Supreme Court of New South Wales - Court of Appeal
The claim arises out a of a motor vehicle accident that occurred on 18 June 2012 at Port Macquarie. The road has a speed limit of 50 kph.
The accident occurred when the Defendant attempted to make a right hand turn into a driveway. At the same time a car driven by Michael Smith and a motorcycle driven by the Plaintiff were travelling in the opposite direction. The Plaintiff was travelling directly behind Mr Smith, such that the Defendant's view of the Plaintiff was obstructed. The Defendant commenced turning right, without coming to a complete stop. At the same time, the Plaintiff increased his speed, passing Mr Smith on the inside, resulting in the Plaintiff colliding with the back passenger side of the Defendant's vehicle, sustaining injuries.
The Plaintiff commenced proceedings in the District Court, claiming his injuries were caused by the Defendant's negligent driving. Fortunately, the accident was captured on CCTV footage, which enabled the relevant experts to assess the likely speed of the vehicles immediately prior to the accident. The Defendant's expert concluded that the Plaintiff was travelling at approximately 100 -120 kph as he approached the Defendant's vehicle and that his speed at the point of impact was 70 kph. The Plaintiff's expert concluded that the Plaintiff's speed was considerably less. Both experts prepared a joint report, whereby they agreed that if the Plaintiff had been travelling at the speed limit, he would have been able to avoid a collision.
Weighing up all the evidence and on the balance of probabilities, the Trial Judge found that the Plaintiff was likely travelling at a speed in the vicinity of 82 kph when he passed Mr Smith.
The Trial Judge found that the Defendant breached her duty of care, however assessed 50% for contributory negligence. The Defendant appealed the Trial Judge's findings on liability and contributory negligence
Liability
The Court of Appeal accepted that the Plaintiff was travelling in excess of 100 kph, however the majority (Macfarlan and McCallum JJA, Basten JA dissenting) upheld the Trial Judge's findings that the Defendant breached her duty of care in that she did not slow down and thus failed to keep a proper lookout for vehicles approaching in the opposite direction.
The appeal in relation to primary liability was dismissed.
Basten JA on the contrary, would have allowed the appeal on the basis that it was not reasonable to have expected the Defendant to take precautions against a motorcycle appearing from behind another vehicle travelling at excessive speed.
Contributory Negligence
The Defendant contended that the Trial Judge erred in assessing the Plaintiff's contributory negligence at 50% as she failed to consider the Plaintiff's excessive speed.
The Court of Appeal cited the common law test set in out in Podrebersek v Australian Iron & Steel. First, there needs to be a comparison of the extent of the culpability of the parties and second, the relative impact of each parties' acts in causing the damage must be considered. In this instance the majority had regard to the following:
The Plaintiff's complete disregard for his own safety by travelling at a speed of at least 100 kph and the very significant contribution of that excess speed in causing the accident justified an increase from 50% to 80% on the part of the Plaintiff.
The Court of Appeal has affirmed the Podrebersek approach of weighing up the relative importance of the acts of the parties when assessing contributory negligence but keeping in mind the potential for harm each is able to cause by reference to the vehicle in their control.
This decision underscores the demise of the `lethal weapon' principle when it comes to assessing contributory negligence in claims by `vulnerable claimants' such as pedestrians, cyclists and, in this case, motorcyclists.
The onus is now on road users to accept personal responsibility for their own safety. Motorcyclists – and, by extension, cyclists and pedestrians – are required to recognise their vulnerability to harm and take personal responsibility by exercising a reasonable level of caution for the circumstances. A failure to do so will result in a high level of contributory negligence, even though the negligent driver may have been in control of a potentially 'lethal weapon'.
The case is a reminder of the value of CCTV footage that may be available from commercial premises in an accident vicinity, thereby permitting greater certainty in terms of the speed and movements of the parties.
If this case was being considered in the context of MAIA, the Plaintiff would be 'mostly at fault' as his contributory negligence was assessed at greater than 61%.
*Macfarlan J, McCallum J & Basten J
Author: Lily Barbouttis
Judgment date: 16 August 2019
Citation: Ayre v Swan [2019] NSWCA 202
Jurisdiction: Supreme Court of New South Wales - Court of Appeal
Principals
- When assessing contributory negligence in a motor accident claim, the approach to apportionment of liability remains that posited in Podrebersek. It involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man and of the relative importance of the acts of the parties in causing the damage. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.
- The precautions reasonably required of a party to a motor accident may differ where the respective drivers were in control of different vehicles. A motorcyclist, like a pedestrian, faces a greater risk of harm relative to the driver of a car. It is this harm against which the contributory negligence of the Plaintiff is to be assessed.
Background
The claim arises out a of a motor vehicle accident that occurred on 18 June 2012 at Port Macquarie. The road has a speed limit of 50 kph.
The accident occurred when the Defendant attempted to make a right hand turn into a driveway. At the same time a car driven by Michael Smith and a motorcycle driven by the Plaintiff were travelling in the opposite direction. The Plaintiff was travelling directly behind Mr Smith, such that the Defendant's view of the Plaintiff was obstructed. The Defendant commenced turning right, without coming to a complete stop. At the same time, the Plaintiff increased his speed, passing Mr Smith on the inside, resulting in the Plaintiff colliding with the back passenger side of the Defendant's vehicle, sustaining injuries.
The Plaintiff commenced proceedings in the District Court, claiming his injuries were caused by the Defendant's negligent driving. Fortunately, the accident was captured on CCTV footage, which enabled the relevant experts to assess the likely speed of the vehicles immediately prior to the accident. The Defendant's expert concluded that the Plaintiff was travelling at approximately 100 -120 kph as he approached the Defendant's vehicle and that his speed at the point of impact was 70 kph. The Plaintiff's expert concluded that the Plaintiff's speed was considerably less. Both experts prepared a joint report, whereby they agreed that if the Plaintiff had been travelling at the speed limit, he would have been able to avoid a collision.
Weighing up all the evidence and on the balance of probabilities, the Trial Judge found that the Plaintiff was likely travelling at a speed in the vicinity of 82 kph when he passed Mr Smith.
The Trial Judge found that the Defendant breached her duty of care, however assessed 50% for contributory negligence. The Defendant appealed the Trial Judge's findings on liability and contributory negligence
Decision
Liability
The Court of Appeal accepted that the Plaintiff was travelling in excess of 100 kph, however the majority (Macfarlan and McCallum JJA, Basten JA dissenting) upheld the Trial Judge's findings that the Defendant breached her duty of care in that she did not slow down and thus failed to keep a proper lookout for vehicles approaching in the opposite direction.
The appeal in relation to primary liability was dismissed.
Basten JA on the contrary, would have allowed the appeal on the basis that it was not reasonable to have expected the Defendant to take precautions against a motorcycle appearing from behind another vehicle travelling at excessive speed.
Contributory Negligence
The Defendant contended that the Trial Judge erred in assessing the Plaintiff's contributory negligence at 50% as she failed to consider the Plaintiff's excessive speed.
The Court of Appeal cited the common law test set in out in Podrebersek v Australian Iron & Steel. First, there needs to be a comparison of the extent of the culpability of the parties and second, the relative impact of each parties' acts in causing the damage must be considered. In this instance the majority had regard to the following:
- The speed at which both parties were travelling. Notably, the Defendant contended that the Trial Judge's determination that the Plaintiff's contribution to the accident in exceeding the speed limit by more than 30kph, was equal to the contribution of the Defendant failing to slow down more significantly or come to a complete stop.
- Had the Plaintiff been travelling at the designated speed limit, the accident could have been avoided.
- The precautions reasonably required by each respective party involved in a motor vehicle accident may be different in kind where the drivers were in control of different vehicles. For example, a motorcyclist faces a greater risk of harm relative to the driver of a car and it is this harm against which the contributory negligence of the Plaintiff is to be assessed.
The Plaintiff's complete disregard for his own safety by travelling at a speed of at least 100 kph and the very significant contribution of that excess speed in causing the accident justified an increase from 50% to 80% on the part of the Plaintiff.
Why this case is important
The Court of Appeal has affirmed the Podrebersek approach of weighing up the relative importance of the acts of the parties when assessing contributory negligence but keeping in mind the potential for harm each is able to cause by reference to the vehicle in their control.
This decision underscores the demise of the `lethal weapon' principle when it comes to assessing contributory negligence in claims by `vulnerable claimants' such as pedestrians, cyclists and, in this case, motorcyclists.
The onus is now on road users to accept personal responsibility for their own safety. Motorcyclists – and, by extension, cyclists and pedestrians – are required to recognise their vulnerability to harm and take personal responsibility by exercising a reasonable level of caution for the circumstances. A failure to do so will result in a high level of contributory negligence, even though the negligent driver may have been in control of a potentially 'lethal weapon'.
The case is a reminder of the value of CCTV footage that may be available from commercial premises in an accident vicinity, thereby permitting greater certainty in terms of the speed and movements of the parties.
If this case was being considered in the context of MAIA, the Plaintiff would be 'mostly at fault' as his contributory negligence was assessed at greater than 61%.
*Macfarlan J, McCallum J & Basten J