DOS SANTOS v C MORRIS PAINTING & DECORATING & ANOR [2006] NSWCA 54

DOS SANTOS v C MORRIS PAINTING & DECORATING & ANOR [2006] NSWCA 54

The majority held that the second respondent was negligent because he changed from lane 2 to lane 1 without indicating, without keeping a proper lookout for vehicles including bicycles in lane 1, and without changing lanes safely. The majority also held that the appellant was contributorily negligent because the unexplained slow movement of the van in circumstances where parking spaces were present made it apparent that the driver might be looking for a parking space, and a cyclist riding beside parked cars should have taken greater care for his own safety by allowing a margin for possible driver error. The 20 per cent apportionment was within the trial judge's discretion, so both the...

Jurisdiction
Australia
Judgment Date
24 March 2006
Procedural Posture
Negligence; Motor Vehicle Accident / Appeal and Cross Appeal From the District Court
Outcome
Appeal and cross-appeal dismissed with costs.
Legal Topics
['failure to Indicate When Changing Lanes' 'contributory Negligence' 'cyclist Riding in Clearway During Parking Times' 'apportionment of Contributory Negligence']
['negligence' 'motor Vehicle Accidents'] ['failure to Indicate When Changing Lanes' 'contributory Negligence' 'cyclist Riding in Clearway During Parking Times' 'apportionment of Contributory Negligence']

Case Brief

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Procedural Posture

Negligence; Motor Vehicle Accident / Appeal and Cross Appeal From the District Court

Legal Issues

  1. 1 ['Whether the second respondent was negligent in changing lanes into a parking space without indicating, keeping a proper lookout or giving way to the appellant cyclist.' 'Whether the appellant cyclist was guilty of contributory negligence by riding in lane 1 beside parked cars while passing a slow vehicle that was looking for a parking space.' 'Whether the 20 per cent reduction for contributory negligence was erroneous or manifestly inadequate.']

Ratio Decidendi

The majority held that the second respondent was negligent because he changed from lane 2 to lane 1 without indicating, without keeping a proper lookout for vehicles including bicycles in lane 1, and without changing lanes safely. The majority also held that the appellant was contributorily negligent because the unexplained slow movement of the van in circumstances where parking spaces were present made it apparent that the driver might be looking for a parking space, and a cyclist riding beside parked cars should have taken greater care for his own safety by allowing a margin for possible driver error. The 20 per cent apportionment was within the trial judge's discretion, so both the...

Court Disposition

Appeal and cross-appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.' 'Cross-appeal dismissed with costs.']