Gilbey v Murray (No 4) [2011] NSWDC 267

District Court New South Wales

Medium Neutral Citation: Gilbey v Murray (No 4) [2011] NSWDC 267 Decision date: 01 September 2011 Before: Cogswell SC DCJ Decision: Document admitted into evidence. Catchwords: TORTS - negligence - determination of standard of care. Evidence - Road and Traffic Authority document represents common driving practice - document not opinion evidence - document admitted into evidence. Cases Cited: Lanza v Codemo [2001] NSWSC 845 Texts Cited: John Fleming, Fleming's The Law of Torts (10th ed, 2011, Lawbook Co.) Category: Principal judgment Parties: David Gilbey (Plaintiff) Lyndall Murray (Defendant) Representation: Counsel: A J Stone (Plaintiff) W M Fitzsimmons (Defendant) File Number(s): DC 2010/251365

Judgment 1This is a case about an accident between a station wagon and a motorbike. There is no dispute about the fact that the driver of the station wagon owed a duty of care to other road users and, indeed, to the rider of the motorbike. 2One of the issues in the case is the scope of that duty of care and whether or not the duty extended in this case to a requirement that the driver of the station wagon, who is the defendant in these proceedings, ought to have looked over her shoulder or used the side mirror before turning right off the highway that she and the motorcyclist were travelling on. 3Mr A J Stone of counsel who appears for the plaintiff has tendered copies of parts of a document issued by the Roads and Traffic Authority. It appears to be an extract from a guide to the driving test. The extracts relied upon by Mr Stone refer to observation, scanning and checking blind spots. One paragraph, for example, reads that a "motorcycle...in an adjacent lane can easily be positioned beyond the area visible in the mirrors. Checking your blind spots is an essential observation skill as many crashes occur because drivers do not turn their head and look over their shoulder before steering. Frequently, not performing observation checks will result in a fail." The last reference is obviously to the driving test undertaken by a person who has a learner's licence in order to qualify for a provisional licence. 4It is tendered by Mr Stone as evidence of a common practice or the existence of a standard which, in turn, I may take into account in one of my ultimate determinations that it is for me to adjudicate as to what is the appropriate standard of care. Mr Stone argues that this document, which I have marked VDB, is relevant to that determination. 5Mr W M Fitzsimmons of counsel who appears for the defendant driver of the station wagon argues that this is not a standard at all. It is not a document such as regulations or even professional standards. It is simply a general guide to what is in a driving test and cannot be elevated to the level of, for example, the Australian Road Rules. In addition, it is no more than an expression of opinion by the unknown author of the document as to what is good driving practice. The unknown author is not available for cross-examination by Mr Fitzsimmons. It is nothing like, he says, a standard or code. 6The authority which Mr Stone relies upon is Lanza v Codemo [2001] NSWSC 845, a decision of Wood CJ at CL. In particular, Mr Stone refers to [169] of that judgment which I will not set out. However, his Honour does say that "[m]ere compliance with a Standard, or even with common practice, does not solely or even primarily determine whether negligence exists or not". His Honour later in the same paragraph referred to "[e]vidence as to practice, or as to the existence of a Standard remains relevant". His Honour confirmed that, "in the end it is for the court to adjudicate upon what is the appropriate standard of care." 7Mr Stone also referred to passages from the latest edition of Fleming's The Law of Torts contained in chapter 7 of that publication on standard of care. I was not provided with any of the authorities referred to in that publication in the footnotes. 8Mr Stone's argument is that this document is issued by the Roads and Traffic Authority which administers driving tests for licensed drivers. It is by its very terms a guide which is to be used by a person who wishes to move from being licensed as a learner driver to being licensed as a provisional driver. It therefore must represent some authority as to the standard expected for persons to move from one licence to another. 9I think there is force in that argument. In my opinion the document does represent what must be regarded, to use Wood J's expression, as "common practice" as to what is required in circumstances which may involve checking blind spots. The weight which should be accorded to the document is ultimately a matter for submissions from the parties. 10Insofar as Mr Fitzsimmons argues that the document ultimately represents an expression of opinion which he is not able to challenge by cross-examination, there may be some force in that point, but it is not, in my opinion, opinion evidence in that sense. It is tendered as an indication of common driving practice which obviously has the approval of the Roads and Traffic Authority. It is evidence limited only to that common practice and its status as opinion evidence must be very questionable given that, as Mr Fitzsimmons points out, we do not know the author of the document. 11I therefore propose to admit VDB and it will become exhibit J in the proceedings.