Philp v Ross [2005] NSWCA 320

Philp v Ross [2005] NSWCA 320

The respondent was negligent because he saw the B-Double with its right indicator operating, proceeded in the right lane without slowing when he should have clarified the situation, and was not keeping a proper lookout. The finding that the appellant was contributorily negligent was unsupported by adequate reasons and was not open on the evidence. The evidence established that the appellant had commenced the right turn when it was safe to do so, stopped when he saw the respondent approaching, and left ample room for the respondent's vehicle to pass; the respondent did not discharge the onus of showing that the appellant's manoeuvre was unsafe or contributorily negligent.

Jurisdiction
Australia
Judgment Date
19 September 2005
Procedural Posture
Negligence Claim for Personal Injuries Arising From a Motor Vehicle Accident / Appeal and Cross Appeal From a District Court Judgment of Sidis DCJ
Outcome
Appeal allowed; cross appeal dismissed.
Legal Topics
['motor Vehicle Collision' 'contributory Negligence' 'road Rules for Turning and Overtaking Heavy Vehicles' 'adequacy of Reasons' 'apportionment']
['torts' 'negligence' 'civil Procedure'] ['motor Vehicle Collision' 'contributory Negligence' 'road Rules for Turning and Overtaking Heavy Vehicles' 'adequacy of Reasons' 'apportionment']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Negligence Claim for Personal Injuries Arising From a Motor Vehicle Accident / Appeal and Cross Appeal From a District Court Judgment of Sidis DCJ

Legal Issues

  1. 1 ['Whether the primary judge erred in finding the appellant contributorily negligent to the extent of 50%.' 'Whether the primary judge erred in finding the respondent negligent.' 'Whether the reasons for the finding of contributory negligence were adequate.' 'Whether, on the evidence, the appellant commenced and conducted the right turn safely under the relevant road rules.']

Ratio Decidendi

The respondent was negligent because he saw the B-Double with its right indicator operating, proceeded in the right lane without slowing when he should have clarified the situation, and was not keeping a proper lookout. The finding that the appellant was contributorily negligent was unsupported by adequate reasons and was not open on the evidence. The evidence established that the appellant had commenced the right turn when it was safe to do so, stopped when he saw the respondent approaching, and left ample room for the respondent's vehicle to pass; the respondent did not discharge the onus of showing that the appellant's manoeuvre was unsafe or contributorily negligent.

Court Disposition

Appeal allowed; cross appeal dismissed.

Orders

  • ['Appeal allowed.' 'Verdict and judgment of Judge Sidis set aside and in lieu thereof verdict and judgment in the sum of $261,357.' 'Cross appeal dismissed.' 'The respondent to pay the costs of the appeal and cross appeal.']