Nettleton v Rondeau
- Recent Decision
- 08 Jul 2014
Decision of Justice Hoeben Chief Judge at Common Law
The case was summed up by the judge as:
“The plaintiff alleges that at approximately 1.30pm on 14 January 2012 he was riding a bicycle east in Lauderdale Avenue, Fairlight when a motor vehicle driven by the defendant emerged from a driveway from behind parked cars across the eastbound traffic lane. A collision between the plaintiff and the motor vehicle resulted, rendering the plaintiff a complete T10 paraplegic.
The plaintiff alleges that the accident was due to the fault of the defendant in failing to drive onto the eastbound lane in such a way as to maximise her view of the road and minimise the extent of the protrusion of her motor vehicle into that lane. There were numerous other particulars of negligence alleged, but that was the one relied upon at trial.
In the alternative, the plaintiff alleged that the collision was a "blameless motor accident", pursuant to s7C of the Motor Accidents Compensation Act 1999 (the Act).
The defendant denied any negligence on her part and asserted that if she were negligent, the plaintiff contributed to the occurrence of the collision by failing to keep a proper lookout, failing to avoid her vehicle and using Lauderdale Avenue rather than a designated bicycle path.
The issues in the proceedings were:
(1) Was the defendant negligent?
(2) If not, was the collision a "blameless motor accident"?
(3) Should contributory negligence be found against the plaintiff and if so, to what extent?”
The judge said in finding the defendant negligent:
“The risk of harm was a risk of a collision with a vehicle travelling east in Lauderdale Avenue, whether it was a car or a bicycle. Not only was the risk of a collision foreseeable, but it was not insignificant in that the likelihood of it occurring was high and the consequences potentially catastrophic. In the circumstances, a reasonable driver in the position of the defendant would have taken the course which the plaintiff suggested, i.e. turning to the east when cars were parked to the west of the driveway. The burden of taking such a precaution was modest in the circumstances and would have given rise to no more than a temporary inconvenience. Such an analysis is valid, not based on hindsight but when one looks at the circumstances prospectively from the point of view of a reasonable driver in the position of the defendant.”
In assessing whether the Plaintiff was partially at fault in the accident the Judge said:
“In that regard, I accept the defendant's submission that given the presence of driveways and parked motor vehicles on the northern side of Lauderdale Avenue, it was negligent of the plaintiff to look towards Ms Kenny and her companion for as long as he did and that this delayed the commencement of his braking.
…It is true that in retrospect had the plaintiff served [sic] the accident may not have occurred. That, however, is not the test. A court has to look at matters prospectively from the plaintiff's point of view. Given the narrow margin in time between a collision occurring or not, the plaintiff would have had a reasonable expectation that he could bring his bicycle to a stop before impact or that the impact would be relatively minor so that an injury would not result. As it turns out, the plaintiff was extremely unlucky in that a very low speed impact resulted in such catastrophic injuries.
…In relation to moral culpability, I also find that it weighs more heavily against the defendant than the plaintiff. The defendant having lived in the premises for three years, was well aware of the danger associated with driving into the eastbound lane in circumstances where she could not see vehicles approaching from the west. This is to be contrasted with the plaintiff's relatively brief lapse in concentration.”
In relation to the question of whether the accident was blameless the Judge said:
“I am satisfied that the effect of the decision in Axiak is that fault on the part of a plaintiff which contributes to the cause of an accident does not constitute "fault" on behalf of "any other person" for the purposes of s7A. Accordingly, my finding that the plaintiff has contributed to the cause of the accident and that there should be a finding of contributory negligence against him would not prevent the accident being a "blameless motor accident".
… It also follows that I am satisfied that in accordance with the provisions of the MAC Act that this was a blameless motor accident.”
In deciding the case the judge said:
“I enter a verdict in favour of the plaintiff against the defendant with damages to be assessed but note that such damages are to be reduced by 25 percent to take account of the plaintiff's contributory negligence.”
To read the entire judgment click on the link below:
http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=172552