Mikaera v Newman Transport Pty Ltd [2013] NSWCA 464

Mikaera v Newman Transport Pty Ltd [2013] NSWCA 464

The challenged factual findings were open on the evidence: the trucks on the left were at most straddling rather than protruding into the through road, the appellant did not slow as much as possible and was travelling at a manifestly excessive speed for the rest area, and he moved too far to the right onto the chevroned area. Given the appellant's distraction, mistaken entry into the truck parking bay, excessive speed and steering onto an area not indicated for travel, the primary judge's assessment that his driving was the primary cause of the accident and that his contributory negligence should be 66% was not unreasonable, plainly unjust or outside the appropriate range.

Jurisdiction
Australia
Judgment Date
20 December 2013
Procedural Posture
Torts Negligence Motor Accident Contributory Negligence / Appeal From District Court of New South Wales Decision on Apportionment of Contributory Negligence
Outcome
Appeal dismissed with costs.
Legal Topics
['contributory Negligence' 'apportionment of Liability' 'negligence' 'vicarious Liability' 'appellate Review of Apportionment']
['torts' 'motor Accidents' 'civil Procedure'] ['contributory Negligence' 'apportionment of Liability' 'negligence' 'vicarious Liability' 'appellate Review of Apportionment']

Case Brief

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Procedural Posture

Torts Negligence Motor Accident Contributory Negligence / Appeal From District Court of New South Wales Decision on Apportionment of Contributory Negligence

Legal Issues

  1. 1 ["Whether the primary judge's finding of contributory negligence was affected by erroneous findings of fact concerning parked vehicles, speed and over-correction to the right." "Whether the primary judge failed to undertake the comparison required by Podrebersek between the culpability and causal importance of the parties' conduct." 'Whether the primary judge failed to give adequate reasons for the percentage reduction for contributory negligence.']

Ratio Decidendi

The challenged factual findings were open on the evidence: the trucks on the left were at most straddling rather than protruding into the through road, the appellant did not slow as much as possible and was travelling at a manifestly excessive speed for the rest area, and he moved too far to the right onto the chevroned area. Given the appellant's distraction, mistaken entry into the truck parking bay, excessive speed and steering onto an area not indicated for travel, the primary judge's assessment that his driving was the primary cause of the accident and that his contributory negligence should be 66% was not unreasonable, plainly unjust or outside the appropriate range.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']