The Nominal Defendant v Buck Cooper [2017] NSWCA 280

The Nominal Defendant v Buck Cooper [2017] NSWCA 280

The appeal was dismissed because the collision did not involve the materialisation of an inherent risk: the risk could have been avoided by reasonable care and skill, including Mr Lamont riding on the correct side of the road, keeping a proper lookout and not exceeding the speed limit. Mr Lamont owed the respondent the ordinary duty of care owed by a road user. Although the primary judge erred in making precise findings about the respondent's level of intoxication and in finding that Mr Lamont travelled a little in excess of 10 km/h over the speed limit, those errors did not affect the outcome. Reassessing contributory negligence, 33 per cent remained appropriate because Mr Lamont was on...

Jurisdiction
Australia
Judgment Date
03 November 2017
Procedural Posture
Negligence Motor Vehicle Accident Appeal / Appeal From the District Court of New South Wales Decision in Cooper V Nominal Defendant [2017] NSWDC 3
Outcome
Appeal dismissed.
Legal Topics
['inherent Risk' 'duty of Care' 'contributory Negligence' 'motorcycle Collision' 'intoxication and Fatigue' 'future Economic Loss' 'residual Earning Capacity']
['negligence' 'motor Accidents' 'damages' 'civil Liability'] ['inherent Risk' 'duty of Care' 'contributory Negligence' 'motorcycle Collision' 'intoxication and Fatigue' 'future Economic Loss' 'residual Earning Capacity']

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Procedural Posture

Negligence Motor Vehicle Accident Appeal / Appeal From the District Court of New South Wales Decision in Cooper V Nominal Defendant [2017] NSWDC 3

Legal Issues

  1. 1 ["Whether the respondent's injuries resulted from the materialisation of an inherent risk under s 5I of the Civil Liability Act 2002 (NSW)." 'Whether Mr Lamont owed the respondent a duty of care in the circumstances of the motorcycle collision.' 'Whether the primary judge erred in factual findings concerning intoxication, visibility, auditory clues and speed.' "Whether the assessment of the respondent's contributory negligence at 33 per cent should be disturbed." 'Whether the primary judge erred in assessing residual earning capacity and future economic loss.']

Ratio Decidendi

The appeal was dismissed because the collision did not involve the materialisation of an inherent risk: the risk could have been avoided by reasonable care and skill, including Mr Lamont riding on the correct side of the road, keeping a proper lookout and not exceeding the speed limit. Mr Lamont owed the respondent the ordinary duty of care owed by a road user. Although the primary judge erred in making precise findings about the respondent's level of intoxication and in finding that Mr Lamont travelled a little in excess of 10 km/h over the speed limit, those errors did not affect the outcome. Reassessing contributory negligence, 33 per cent remained appropriate because Mr Lamont was on...

Court Disposition

Appeal dismissed.

Orders

  • ['Appeal dismissed.' "The appellant pay the respondent's costs of the appeal as agreed or assessed."]