Catlin v Draper

3 NSWLR 378; [2023] NSWCA 49

NSW Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Civil appeal
3. › Review of factual findings
4. › Advantages of primary judge
5. › Whether findings supported by evidence
6. › Nature of review on appeal
7. › Supreme Court Act 1970 (NSW), s 75A
1. Appeal
2. › Civil appeal
3. › Adequacy of reasons
4. › Judicial obligation to give reasons
5. › Whether reasons sufficient to explain findings on duty, breach and contributory negligence
1. Torts
2. › Negligence
3. › Duty of care
4. › Illegality defence
5. › Incongruity between plaintiff's criminal conduct and imposition of duty of care
6. › Whether duty of care owed by driver to person on bonnet of car
7. › Civil Liability Act 2002 (NSW), ss 52, 53, 54
1. Torts
2. › Negligence
3. › Breach of duty
4. › Agony of the moment
5. › Whether defendant acted reasonably in emergency
6. › Where onus lies
7. › Evidentiary onus on defendant

Quick Take

The evidentiary onus of establishing the 'agony of the moment' defence lies on the defendant, and breach of provisional licence conditions (passenger restrictions) can constitute an 'offence' for the purposes of s 54(2) of the Civil Liability Act 2002 (NSW), thereby displacing the illegality defence under s 54(1).