ROTH v. RTA & ORS [2007] NSWSC 128

New South Wales Supreme Court

CITATION : ROTH v. RTA & ORS [2007] NSWSC 128

HEARING DATE(S) : 6 to 9 November 2006

JUDGMENT DATE : 9 March 2007

JURISDICTION : Common Law

JUDGMENT OF : Hall J at 1

DECISION : The appropriate finding in terms of the respective responsibilities of the plaintiff and the defendant is that the plaintiff was 60% responsible and the defendant 40% responsible for the accident.

CATCHWORDS : TORTS – Negligence – road accident cases – head-on collision – liability as between plaintiff driver and defendant driver – relevance of Australian Road Rules – causative breach – failure to maintain proper lookout – failure to keep left – opportunity to take evasive action. - TORTS – Contributory negligence – road accident cases – relevance of Australian Road Rules – error of judgment on part of plaintiff – plaintiff's duty of care – breach on part of plaintiff – significance of causative breach on part of plaintiff. - EVIDENCE – absence of explanation or elucidation as to material issues of fact on part of defendant notwithstanding the admission in the plaintiff's case of his statement to Police – availability of Jones v Dunkel inference in favour of plaintiff – application of principles.

LEGISLATION CITED : Motor Accidents Compensation Act 1999 Law Reform (Miscellaneous Provisions) Act 1946

Blatch v. Archer (1774) 1 Cowp. 63 Jones v. Dunkel (1959) 101 CLR 298 Payne v. Parker [1976] 1 NSWLR 191 Manly Council v. Byrne [2004] NSWCA 123 CASES CITED : State Bank of NSW v. Brown [2001] NSWCA 22 Podrebersek v. Australian Iron & Steel Pty. Limited (1985) 59 ALJR 492 Ooslyn v. Berryman (2003) 214 CLR 552 Liftronic Pty. Limited v. Univer (2001) 75 ALJR 867 Wynbergen v. Hoyt's Corporation Pty. Limited (1997) 75 ALJR 65 Evans v. Lindsay [2006] NSWCA 354