By Christina Saldat, Graduate Lawyer, and David Slatyer, Partner

Tripodi Pty Limited v Phillips [2024] NSWDC 31

Facts

Mr Brady was driving the Plaintiff’s truck northbound along Hume Highway at Sutton Forrest, New South Wales (‘the Highway’). Mr Brady was travelling in Lane 1, the leftmost of two northbound lanes.

The Highway intersects with Golden Vale Road (‘the Intersection’). There is a rise which reaches a crest about 280 metres south of the Intersection.

Another driver, Mr Phillips, made a right-hand turn from the Intersection into the Highway, ahead of Mr Brady.  At that time the Plaintiff’s truck had already crested the rise and was between 225 to 250 metres to the south of the Intersection. Mr Phillips then traversed Lane 2, into Lane 1 of the Highway.

In making the right-hand turn, Mr Phillips positioned his vehicle in front of Mr Brady’s vehicle, but failed to accelerate at the required speed for oncoming traffic; forcing Mr Brady to take action to avoid an imminent collision, by driving onto the road shoulder, resulting in the trailer hitting a guardrail, tipping over, suffering damage and losing its load.

The issues for determination were the questions of primary liability on the part of Mr Phillips, and contributory negligence or concurrent wrongdoing on the part of Mr Brady.

Decision

In considering the duty owed by a driver to other road users, the Court referred to Manley v Alexander[1] where the High Court set out that driving requires reasonable attention to what is happening on and near the roadway, while also considering and paying attention to potential hazards that may come to be ahead of the vehicle’s path. The Court also referred to Cocks and Anor v Sheppard[2] where the High Court said that drivers owe the duty to not act on the assumption that there is no other vehicle on the roadway without looking to see whether the assumption is correct.

The Court determined that primary responsibility for the incident lay with Mr Phillips. When making the right-hand turn onto the Highway, Mr Phillips failed to keep a proper lookout. By not checking his rear-view mirror, side mirrors or otherwise looking behind him, Mr Phillips did not see what traffic was behind him, and as a result, he did not see the Plaintiff’s truck behind him before he commenced the right-hand turn into Lane 1 of the Highway.

The Court found that Mr Brady was a concurrent wrongdoer. Mr Brady was too slow to react to the presence of Mr Phillip’s vehicle because he incorrectly assumed that Mr Phillips would remain in Lane 2 and that Mr Phillips had seen the Plaintiff’s truck. It was reasonable for Mr Brady to initially assume that Mr Phillips had seen the truck. If Mr Phillips had kept a proper lookout, he would have seen the Plaintiff’s truck. However, had Mr Brady kept a proper lookout, he would have seen Mr Phillips entering Lane 1 earlier, allowing him to react promptly and take steps to avoid the damage suffered.

Accordingly, the Court determined that 70% of the damages should be attributed to the conduct of Mr Phillips and 30% to the conduct of Mr Brady.

[1] (2005) 80 ALJR 413 at [11].

[2] (1998) 25 ALR 325 at 331.