What happened
In March 2012, the plaintiff was riding north near Mudgee on a road with a 100 km/h limit when he attempted to overtake the defendant's slow-moving farm vehicle. The defendant turned right from the road into her home driveway and the motorcycle struck the driver's side of her vehicle. The plaintiff sustained a severe traumatic brain injury and multiple fractures and had no memory of the accident.
The issues
The central questions were whether the defendant's failure to check behind before turning was both a breach of duty and a factual cause of the collision, and when her right indicator was activated. The trial judge found that it operated only about three seconds before impact, but on appeal the decisive question was whether that inference was open on the evidence and the way the defendant had been cross-examined.
The court's decision
The District Court held that a mirror check would have revealed the motorcycle and allowed the defendant to delay her turn, while fixing the rider's responsibility at 25% for overtaking before being satisfied that the slow farm vehicle would not turn. In Dent v Calcagno [2016] NSWCA 289, the Court of Appeal held that there was no proper basis to reject the defendant's evidence that she indicated near a sign about 27 metres before the driveway, and that the evidence did not establish what a mirror check reasonably required her to do or that it would have avoided the crash. The plaintiff's judgment was therefore set aside, the proceeding dismissed, and he was ordered to pay the trial and appeal costs.
Understanding the figures
The District Court assessed gross historical damages at AUD 672,701 and entered judgment for AUD 504,525 after a 25% contributory-negligence reduction. That was a trial assessment which ceased to operate when the Court of Appeal set aside the plaintiff's judgment and dismissed the claim; it was not the final recovery.
What this case shows
The case illustrates that identifying an omitted driving precaution does not itself prove causation. Where one driver cannot remember the collision and timing and distance estimates are uncertain, the evidence must establish not only the breach but the counterfactual course showing that the precaution would probably have prevented the accident.
Why another case may differ
The liability and damages result in the published 2015 judgment was reversed in 2016 and must not be presented as the final outcome. The appeal turned on this evidentiary record, including the indicator evidence, cross-examination and accident reconstruction; it does not establish that a right-turning driver generally need not check behind.
Applying it to your claim
Different facts, evidence or procedures, an appeal, or a change in the law may affect how this decision applies. This is general information, not a report of a case handled by Park & Co Lawyers.
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