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March 21, 2018

Contributory negligence in the dust



Nominal Defendant v Bacon [2014] NSWCA 275

Ms Bacon’s car collided with an unregistered truck as both were travelling in opposite directions on an unsealed country road in dusty conditions. The District Court found the Nominal Defendant liable for damages but reduced them by 50% for contributory negligence. The Nominal Defendant appealed the finding that the truck driver’s action was causative of the accident and the assessment of contributory negligence.

The accident occurred on an unsealed country road. As was common practice, the plaintiff was driving in the middle of the road, in a cloud of dust being thrown up by a prime mover. She could see just over a car length in front and was slowing as the dust got thicker. She was in the process of veering slightly towards the left side of the road when she saw the front of a semi trailer coming from the opposite direction. The two vehicles collided.

When the driver of the semi trailer first observed the prime mover, he was driving in the centre of the road. He noticed a cloud of thick white dust behind it which completely obscured his view such that he could not see what was on the other side. Before the two vehicles passed, the semi trailer moved over to the side, of the track.

The primary judge concluded that immediately before the collision the semi trailer was steering back onto the track and, while doing so, collided with the plaintiff’s vehicle. As such, the semi trailer driver was negligent for failing to steer and control his truck so as to avoid a collision and drove when his vision of the oncoming traffic was obscured due to dust.

The Court of Appeal accepted the trial judge’s findings, dismissing the appeal. The trial judge correctly noted that in the circumstances confronting the semi trailer it was unreasonable for him not to have kept his vehicle to the far left of the road until, when the dust cleared, he was able to see what lay ahead of him. It was unreasonable for the semi trailer to return towards the centre of the road until his vision was clear, particularly bearing in mind the frequency with which drivers on such roads straddle the centre of the road. If the semi trailer had remained where it was, and not steered back onto the track, in all probability the accident would not have occurred.

Further, if the plaintiff had not driven towards the middle of the road but had remained as far on her left as possible, the accident would still have occurred as, with the semi trailer at or near the middle of the road, there was no room for the vehicles to pass.

With respect to contributory negligence, the plaintiff was driving in or close to the centre of the road in a situation where she could not see if there was oncoming traffic. The trial judge’s finding of equal contribution was not unreasonable or unjust.