Tvedsborg v Vega [2009] NSWCA 57

Tvedsborg v Vega [2009] NSWCA 57

Mr Tvedsborg remained liable because, travelling considerably above the speed limit with his front wheel at least partly overlapping or close behind the Nominal Defendant's motorcycle, he failed to keep a proper lookout or ride at a safe speed so as to avoid the collision. The Nominal Defendant was also negligent because, in a large group ride where close proximity of motorcycles was foreseeable, the unidentified rider drifted sufficiently from the line of travel to clip Mr Tvedsborg's motorcycle. Responsibility was apportioned 75 per cent to Mr Tvedsborg and 25 per cent to the Nominal Defendant because Mr Tvedsborg was behind or mostly behind and able to observe the Nominal Defendant's...

Jurisdiction
Australia
Judgment Date
20 March 2009
Procedural Posture
Appeal and Cross Appeal in Negligence Personal Injury Proceedings Arising From a Motorcycle Accident / Appeal From District Court Separate Determination of Liability; Leave to Appeal and Cross Appeal Granted; Damages Remitted for Assessment
Outcome
Appeal by Mr Tvedsborg from the finding of liability against him dismissed; appeal by Mr Tvedsborg concerning dismissal of his cross-claim allowed; Ms Vega's cross-appeal allowed; liability apportioned 75 per cent to Mr Tvedsborg and 25 per cent to the Nominal Defendant; matter remitted to the District Court for...
Legal Topics
['joint and Several Tortfeasors' 'apportionment of Liability' 'duty of Care Owed to Pillion Passengers' 'duty of Care Owed by Motorcyclists to Other Motorcyclists' "medical Examinations by Defendants' Experts" 'overriding Purpose']
['torts' 'negligence' 'motor Accidents Compensation' 'contribution' 'damages' 'civil Procedure'] ['joint and Several Tortfeasors' 'apportionment of Liability' 'duty of Care Owed to Pillion Passengers' 'duty of Care Owed by Motorcyclists to Other Motorcyclists' "medical Examinations by Defendants' Experts" 'overriding Purpose']

Case Brief

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Procedural Posture

Appeal and Cross Appeal in Negligence Personal Injury Proceedings Arising From a Motorcycle Accident / Appeal From District Court Separate Determination of Liability; Leave to Appeal and Cross Appeal Granted; Damages Remitted for Assessment

Legal Issues

  1. 1 ['Whether the trial judge erred in attributing sole responsibility for the accident to Mr Tvedsborg' 'Whether Mr Tvedsborg breached his duty of care to Ms Vega by riding at excessive speed and failing to keep a proper lookout' "Whether the unidentified motorcyclist represented by the Nominal Defendant was negligent by drifting from its line of travel and clipping Mr Tvedsborg's motorcycle" 'How liability should be apportioned between Mr Tvedsborg and the Nominal Defendant' 'Whether, on remitter for damages, the two defendants should be limited to one expert between them in each relevant medical specialty']

Ratio Decidendi

Mr Tvedsborg remained liable because, travelling considerably above the speed limit with his front wheel at least partly overlapping or close behind the Nominal Defendant's motorcycle, he failed to keep a proper lookout or ride at a safe speed so as to avoid the collision. The Nominal Defendant was also negligent because, in a large group ride where close proximity of motorcycles was foreseeable, the unidentified rider drifted sufficiently from the line of travel to clip Mr Tvedsborg's motorcycle. Responsibility was apportioned 75 per cent to Mr Tvedsborg and 25 per cent to the Nominal Defendant because Mr Tvedsborg was behind or mostly behind and able to observe the Nominal Defendant's...

Court Disposition

Appeal by Mr Tvedsborg from the finding of liability against him dismissed; appeal by Mr Tvedsborg concerning dismissal of his cross-claim allowed; Ms Vega's cross-appeal allowed; liability apportioned 75 per cent to Mr Tvedsborg and 25 per cent to the Nominal Defendant; matter remitted to the District Court for...

Orders

  • ['The appeal by Mr Tvedsborg from the finding of liability against him be dismissed.' 'The appeal by Mr Tvedsborg in respect of the dismissal of his cross-claim against the Nominal Defendant be allowed.' "Ms Vega's cross-appeal against the Nominal Defendant be allowed." 'Set aside orders (3) and (4) made by the...