by David Kidd | Jul 12, 2015 | Uncategorized
See Davis v Swift 4/6/13 [2013] NSWDC 99 per Gibson DCJ. P was injured when struck by a car at night when crossing the road. Traffic was busy and there was a pedestrian crossing 60m from the point of the accident. His Honour found it difficult to understand the mechanics of the accident from P’s evidence, instead preferring D and other testimony that P moved to the centre of the road then walked quickly backwards into traffic (presumably due to concerns for her safety due to the level of traffic). D had been waiting to pull out from a car bay at the side of the road and another vehicle had stopped, indicating, to go into the bay. Though the duty owed to a driver by a pedestrian is a high one this was a rare case where P was entirely the author of her own misfortune. The fact that D did not see P was due to her quick and unpredictable movements. Appeal allowed in part 22/12/14 in [2014] NSWSC 458. The “primary judge did not err in not inferring fault on the part of the respondent. The evidence … did not justify a finding that from the respondent’s position in the driver’s seat had she looked forwards, backwards and forwards as she asserted, she must have seen the appellant in time to take some action to avoid colliding with her” @19 per Meagher JA. “As was the position in Axiak, the position in this case is that the ‘blameless accident’ is not one in which the driver has failed to continue in careful control of his or...
by David Kidd | Jul 12, 2015 | Uncategorized
See Buggy v Nominal Defendant 28/11/14 [2014] NSWDC 224 where Gibson DCJ, from paragraph 147, gives reasons for being cautious about evidence in police and hospital reports. There were various evidential inconsistencies in this case.
by David Kidd | Jul 4, 2015 | Uncategorized
In WW v R 9/8/12 [2012] NSWCCA 165 A was sentenced to two years and nine months imprisonment for failing to stop after an accident in October 2009 when he was 17 in which he killed a cyclist. On the count of dangerous driving causing death “the [A] was sentenced to imprisonment with a non-parole period of 4 years, commencing 1 January 2012 and expiring 31 December 2015, with a balance of term of 3 years expiring 31 December 2018. The overall sentence was a non-parole period of 5 years, with a balance of term of 3 years. His Honour also imposed a licence disqualification of 6 years commencing 19 April 2011. A only pleaded guilty to failing to stop. “In assessing moral culpability, his Honour appropriately took into account that the [A] was never licensed to drive, had been convicted on two occasions of driving while unlicensed and yet shortly before the accident had purchased the car which was involved. The [A’s] failure to stop was relevant, although its importance was limited given that it formed the basis of the second offence. His Honour considered that the deliberate use of a telephone to text a message so that the driver was totally oblivious to the fact that the car had moved onto the incorrect side of the road and had thereby lost control of the car, was an important factor in his assessment of the moral culpability of the [A] as high. That was a conclusion well open … [A]n activity which so occupies the attention of a driver that he does not or cannot observe the road...
