Davis v Swift [2014] NSWCA 458

Davis v Swift [2014] NSWCA 458

The evidence did not justify a finding that, from the respondent's position in the driver's seat, she must have seen the appellant in time to avoid the collision if she looked as she said she did, so negligence was not established. However, on the blameless accident claim, the primary judge erred by treating the appellant's conduct as the sole cause of the accident for apportionment purposes and by taking into account irrelevant factors. Applying Axiak, the appellant's sudden backward movement without looking was a significant but not worst-case departure from reasonable care, warranting an 80 per cent reduction rather than 100 per cent. After reassessing damages at $186,717 and reducing...

Jurisdiction
Australia
Judgment Date
22 December 2014
Procedural Posture
Motor Accident Personal Injury Appeal Involving Negligence, Blameless Motor Accident and Contributory Negligence / Appeal From the District Court of New South Wales Decision [2013] NSWDC 99
Outcome
Appeal allowed; District Court judgment and costs order set aside; judgment for the appellant against the respondent for $37,343.
Legal Topics
['negligence' 'breach of Duty of Care' 'contributory Negligence' 'blameless Motor Accident' 'apportionment of Responsibility' 'assessment of Damages']
['torts' 'motor Accidents' 'damages'] ['negligence' 'breach of Duty of Care' 'contributory Negligence' 'blameless Motor Accident' 'apportionment of Responsibility' 'assessment of Damages']

Case Brief

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Procedural Posture

Motor Accident Personal Injury Appeal Involving Negligence, Blameless Motor Accident and Contributory Negligence / Appeal From the District Court of New South Wales Decision [2013] NSWDC 99

Legal Issues

  1. 1 ['Whether the respondent breached her duty of care to the appellant by failing to keep a proper lookout as she commenced to drive her vehicle from the kerb.' 'Whether, if the accident was a blameless motor accident, the primary judge erred in assessing contributory negligence at 100 per cent.' 'Whether the primary judge erred in assessing damages for past and future out-of-pocket expenses, non-economic loss, past and future economic loss, and future domestic care and assistance.']

Ratio Decidendi

The evidence did not justify a finding that, from the respondent's position in the driver's seat, she must have seen the appellant in time to avoid the collision if she looked as she said she did, so negligence was not established. However, on the blameless accident claim, the primary judge erred by treating the appellant's conduct as the sole cause of the accident for apportionment purposes and by taking into account irrelevant factors. Applying Axiak, the appellant's sudden backward movement without looking was a significant but not worst-case departure from reasonable care, warranting an 80 per cent reduction rather than 100 per cent. After reassessing damages at $186,717 and reducing...

Court Disposition

Appeal allowed; District Court judgment and costs order set aside; judgment for the appellant against the respondent for $37,343.

Orders

  • ['Appeal allowed.' 'Set aside the judgment entered, and order as to costs made, by the District Court on 4 June 2013.' 'Judgment for the appellant against the respondent for $37,343, that judgment to take effect on 4 June 2013.' "If the parties cannot agree as to the orders for costs to be made, they are to file and...