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21 August 2019

Excess speed and contributory negligence – Ayre v Swan [2019] NSWCA 202

In Ayre v Swan [2019] NSWCA 2020, the New South Wales Court of Appeal increased a contributory negligence finding to 80% because of the plaintiff’s grossly excessive speed.

In Ayre v Swan [2019] NSWCA 2020, the New South Wales Court of Appeal increased a contributory negligence finding to 80% because of the plaintiff’s grossly excessive speed.


On 18 June 2012, Miss Ayre, the defendant, was travelling on Lake Road, Port Macquarie intending to turn right into a commercial driveway. A car driven by Mr Smith was approaching in the outer of the two oncoming lanes and was travelling at approximately 50 kilometres per hour (the speed limit). The plaintiff, Mr Swan, riding his motorcycle behind Mr Smith’s car, was obstructed from Miss Ayre’s view.

As Miss Ayre started to turn right, Mr Swan moved into the inner lane, increased speed and passed Mr Smith’s car. He collided with the rear passenger side of Miss Ayre’s vehicle, injuring his left leg and knee and sustaining multiple abrasions.

There was CCTV footage of traffic movement and the accident, which was analysed by experts with respect to Mr Swan’s speed.

Trial decision

At first instance, the trial judge found that Miss Ayre was negligent on the basis that a reasonably prudent driver in her position would have slowed down further or come to a full stop to keep a proper lookout before turning.

With respect to contributory negligence, expert evidence was given that Mr Swan had approached the accident site at a speed of 100 to 120 km per hour and was travelling at 70 km per hour at the time of impact. This evidence was not accepted and the trial judge found that Mr Swan was travelling ‘somewhere in the vicinity’ of 82 km per hour. The judge held that both Miss Ayre’s failure to slow down or stop and Mr Swan exceeding the speed limit by more than 30 km per hour contributed equally to the cause of the accident. A finding of 50% contributory negligence was made.

Court of Appeal decision

Miss Ayre appealed the finding of liability, contributory negligence and quantum (specifically past and future economic loss).

With respect to liability, Basten JA found that it was not reasonable to expect a driver to take precautions against the risk of a motorcycle appearing behind a vehicle travelling at approximately twice the speed limit. The majority however dismissed the appeal on liability, agreeing with the trial judge’s finding that a reasonable person turning across two lanes of traffic would have slowed down or stopped so that they could see traffic in either lane.

In his reasons, Basten JA noted that the balance of probabilities weighed heavily in favour of accepting the expert evidence that Mr Swan was travelling at a speed over 100 km per hour. McFarlan JA and McCallum JA agreed with this. The Court of Appeal held that the Mr Swan’s indiscriminate disregard for his own safety significantly contributed to the accident, justifying a substantially greater reduction in the Miss Ayre’s liability.

The primary judge’s determination of 50% contributory negligence was set aside and a finding of 80% contributory negligence substituted.

The appeal on quantum was dismissed. Accordingly, judgment was entered for Mr Swan for $122,947. Mr Swan was ordered to pay Miss Ayre’s appeal costs.

As found by Callinan J in Fox v Percy [2003] HCA 22, courts are reluctant to allow expert evidence, particularly in motor vehicle accident claims, that is based on subjective and biased versions of events and involve the estimates of time, space, speed and distance made by people who are unfamiliar with making such estimates. Judge Davis in the recent decision of Brown v Daniels [2018] QSC 209 held that opinion evidence is inadmissible where the opinion is not properly based on a field of science, which often arises when there are unknown variables or assumptions.

In this instance the experts had the benefit of CCTV footage showing traffic movement and the incident. While the trial judge rejected the evidence of the expert who calculated the speed of the plaintiff using that CCTV footage, the Court of Appeal considered this evidence was erroneously discounted.

For advice on compulsory third party claims and contributory negligence, please contact our insurance team.

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