Keith Bruce Evans & Anor v Stuart James Lindsay [2006] NSWCA 354

New South Wales Court of Appeal

CITATION: Keith Bruce Evans & Anor v Stuart James Lindsay [2006] NSWCA 354

HEARING DATE(S): 15 August 2006

JUDGMENT DATE: 11 December 2006

JUDGMENT OF: Beazley JA at 1; Ipp JA at 119; Bryson JA at 120

DECISION: 1. Appeal allowed in part and dismissed in part; 2. The judgment of the trial judge to be varied so as to take account of the assessment of contributory negligence and the variations to the award of damages that are required by the conclusions I have reached on Grounds 3 and 4; 3. The parties to bring in short minutes of order within seven days of the date of this judgment in accordance with the reasons for judgment; 4. The appellants are to pay 80 per cent of the respondent's costs of the appeal.

CATCHWORDS: MOTOR VEHICLE ACCIDENT – breach of duty – standard of care required of driver – whether driver had sufficient control of speed and direction of vehicle to react to events within vicinity of car – dark wet conditions in built-up area – whether driver ought to have been driving slower than speed limit - DUTY OF CARE – driver of motor vehicle – whether reasonable response taken to risk of injury – whether failure to keep proper lookout - CONTRIBUTORY NEGLIGENCE – evaluative exercise – insufficient regard by respondent for own personal safety - REASONS FOR JUDGMENT – reasoning process – whether trial judge engaged in hindsight reasoning – whether trial judge's findings contained internal inconsistencies

LEGISLATION CITED: Civil Liability Act 2002 (NSW) ss 5B, 5F, 5G Motor Accidents Compensation Act 1999 (NSW) s 138

Anikin v Sierra (2004) 79 ALJR 452; [2004] HCA 64 Baker v Longhurst & Sons Limited [1933] 2 KB 461 Derrick v Cheung (2001) 181 ALR 301; [2001] HCA 48 Grove v Elphick (1985) 2 MVR 74 Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34 Liftronic Pty Limited v Unver (2001) 75 ALJR 867; [2001] HCA 24 CASES CITED: Manley v Alexander (2005) 80 ALJR 413; [2005] HCA 79 Morris v Luton Corporation [1946] 1 KB 114 Neindorf v Junkovic [2005] HCA 75 Pledge v RTA (2004) 78 ALJR 572; [2004] HCA 13 Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 South Tweed Heads Rugby League Football Club Limited v Cole & Anor (2002) 55 NSWLR 113; [2002] NSWCA 205 Vairy v Wyong Shire Council (2005) 80 ALJR 1; [2005] HCA 62