Herne Investments (NSW) Pty Limited v Don Watson Proprietary Limited

[2016] NSWCA 72

NSW Court of Appeal

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Interrogate

Catchwords

1. Torts
2. › Negligence
3. › Duty of care
4. › Motor vehicle accident
5. › Merging traffic
6. › Whether driver in overtaking lane breached duty by not giving way to merging vehicle
7. › Whether reasonable person would have taken precautions of slowing down
8. › Civil Liability Act 2002 (NSW), ss 5B, 5C
9. › Road Rules 2008 (NSW), r 148
1. Appeal
2. › Standard of appellate review
3. › Findings of fact
4. › Inferences from established facts
5. › Whether primary judge's findings supported by evidence
6. › Role of DVD footage evidence
7. › Warren v Coombes [1979] HCA 9
1. Practice and Procedure
2. › Costs
3. › Indemnity costs
4. › Offer of compromise
5. › Whether appellant justified in not accepting offer
6. › Discretion to 'otherwise order'
7. › Uniform Civil Procedure Rules 2005 (NSW), r 42.15A

Quick Take

A driver in a continuing overtaking lane is not required to slow down to allow a merging vehicle to enter that lane where the merging driver is obliged by Road Rule 148 to give way and has given no indication of an intention to merge. Compliance with Road Rules, while not determinative of reasonable care under s 5B of the Civil Liability Act 2002 (NSW), is a significant factor in assessing whether precautions should have been taken. DVD footage filmed in poor conditions (darkness, rain) from a trailing vehicle may have limited probative value in establishing relative vehicle positions and speeds.