Dent v Calcagno [2016] NSWCA 289

Dent v Calcagno [2016] NSWCA 289

The respondent failed to establish negligence. The primary Judge's finding that the appellant activated her right hand indicator only about 10 metres before the driveway should not have been made because her evidence that she activated it at or near the yellow advisory sign was not shown to be unreliable or inconsistent. On the accepted basis that the indicator was activated about 27 metres before the driveway and for at least about 6.5 seconds before impact, the respondent had sufficient warning to avoid the collision. In those circumstances the appellant was not negligent by failing to check the road behind her in her mirrors, and in any event the evidence did not establish that such a...

Jurisdiction
Australia
Judgment Date
19 October 2016
Procedural Posture
Civil Appeal in Tort Negligence Arising From a Motor Vehicle Collision / Appeal and Cross Appeal From the District Court of New South Wales Decision in Calcagno V Dent [2015] NSWDC 308
Outcome
Appeal allowed; cross-appeal dismissed; judgment entered for the defendant.
Legal Topics
['duty of Care' 'breach of Duty' 'causation' 'contributory Negligence' 'overtaking' 'right Hand Turn' 'road Rules' 'appellate Review of Factual Findings']
['torts' 'negligence' 'motor Vehicle Accidents' 'civil Procedure'] ['duty of Care' 'breach of Duty' 'causation' 'contributory Negligence' 'overtaking' 'right Hand Turn' 'road Rules' 'appellate Review of Factual Findings']

Case Brief

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Procedural Posture

Civil Appeal in Tort Negligence Arising From a Motor Vehicle Collision / Appeal and Cross Appeal From the District Court of New South Wales Decision in Calcagno V Dent [2015] NSWDC 308

Legal Issues

  1. 1 ['Whether the primary Judge erred in finding that the appellant activated her right hand indicator only about 10 metres before the driveway and shortly before impact.' 'Whether the appellant breached her duty of care by failing to look in her rear vision mirror or side mirrors before turning right into her driveway.' "Whether any failure to look behind was causative of the collision and the respondent's injuries." "Whether the respondent's cross-appeal against contributory negligence should be allowed."]

Ratio Decidendi

The respondent failed to establish negligence. The primary Judge's finding that the appellant activated her right hand indicator only about 10 metres before the driveway should not have been made because her evidence that she activated it at or near the yellow advisory sign was not shown to be unreliable or inconsistent. On the accepted basis that the indicator was activated about 27 metres before the driveway and for at least about 6.5 seconds before impact, the respondent had sufficient warning to avoid the collision. In those circumstances the appellant was not negligent by failing to check the road behind her in her mirrors, and in any event the evidence did not establish that such a...

Court Disposition

Appeal allowed; cross-appeal dismissed; judgment entered for the defendant.

Orders

  • ['Appeal allowed.' 'Set aside Orders 1 and 2 made by the primary Judge on 18 December 2015.' 'In lieu thereof make the following orders: Judgment for the defendant.' "In lieu thereof make the following orders: The plaintiff pay the defendant's costs." 'Dismiss the cross-appeal.' "The respondent pay the appellant's...