Australia: Injured Motorcycle Rider Fails to Establish Negligence But No Indemnity Costs for Defendant

Curwoods Case Note: Butt v Mrowka
Last Updated: 31 May 2010
Article by Nathan Morehead

Judgment date: 17 May 2010. Butt v Mrowka 2010 NSW CA 1081, NSW Court of Appeal

In Brief

  • The benefit of hindsight cannot be used to conclude that a defendant failed to exercise reasonable care simply because action which would have avoided a collision was not taken. Whether a reasonable person would have taken those precautions is determined by a number of factors, including reasonable expectations about the manner in which other vehicles that may be on the roadway are being driven.
  • For a defendant to secure an order for indemnity costs in circumstances where a plaintiff does not establish negligence, it must be shown that their Offer of Compromise contains a real or genuine element of compromise.


On 29 December 2003, the appellant, who was then 16 years of age, was riding a motorcycle in a southerly direction along Spring Creek Road, a narrow gravel–logging track within the Queens Lake State Forest. The respondent was driving a Toyota HiLux 4WD Station Wagon in the opposite direction. The appellant was confronted with the respondent's vehicle as it travelled around a curve in the road. The motorcycle collided with the front near side of the station wagon, causing the appellant to sustain serious injuries.

District Court of NSW – Boulton ADCJ

A verdict was entered in favour of the respondent after it was found that none of the particulars of negligence alleged by the appellant had been established. The effective cause of the accident was found to be the appellant's failure to keep to the left of the road and his excessive speed in the circumstances. To guard against the prospect of a successful appeal, damages were assessed at $346,998.25, in the event negligence had been established. The appellant was ordered to pay the respondent's costs on the ordinary basis only.

The Appeal

The appellant conceded that whilst he was partially at fault for the accident, it had been incorrectly found that the respondent was not shown to have been in breach of his duty of care.

He sought an order entering judgment on liability and invited the Court to assess the extent of his contributory negligence.

The respondent sought to cross-appeal the decision of Judge Boulton to decline to order the appellant to pay costs on an indemnity basis from 20 July 2006. This was when it served an Offer of Compromise, being a verdict for the defendant with each party to bear their own costs, which the applicant did not subsequently accept. It was contended that Judge Boulton erred in concluding that the offer did not involve a genuine element of compromise by failing to take into account the strength or weakness of the appellant's case.

Court of Appeal – Sackville AJA with whom Tobias JA and McColl JA agreed

Given the basis upon which the appeal was lodged, it was incumbent on the Court to give consideration to the findings made by Judge Boulton, which included:

  • The appellant's motorcycle was travelling close to the edge of the road, on its incorrect side. The appellant failed to keep a proper look out and was travelling at such a speed that when he initially saw the respondent's vehicle he was precluded from applying the brakes on the motorcycle or taking evasive action prior to the impact.
  • The respondent's vehicle was travelling at a moderate speed close to the left hand side of the road as it approached the curve and skidded some 16 m to a stop, or near stop, at the point of impact.
  • The head-on impact occurred at the very edge of the gravel track at the line of the left headlight on the bullbar of the respondent's vehicle, with the motorcycle upright.

The appellant submitted that Judge Boulton made errors of fact and law and failed to analyse the evidence properly, specifically, the positions of the respective vehicles on their approaches to the point of impact, the actions of the respective drivers, fundamental conflicts in the evidence, the topography of the track and surrounding area, the narrowness of the track and the tightness of the blind corner when considering the actions of the appellant and respondent.

The respondent did not dispute that he owed a duty of care to the appellant. However, it emphasised that the duty was confined to the need to take reasonable care to avoid other road users as distinct from every measure which, with the wisdom of hindsight, may have avoided a collision and, as a consequence, harm to the appellant. It was submitted that the findings of fact were not only open but wholly in accordance with the incontrovertible evidence.

When assessing the appellant's submissions, the Court considered two important matters, being the appellant's evidence and the physical evidence.

The Appellant's Evidence

It was noted that Judge Boulton found the appellant's evidence unreliable in a number of significant respects because he had not had the opportunity, at the time of the collision, to absorb what occurred and had later attempted to reconstruct events. This finding was made for a number of reasons. Firstly, he had, at different times, given varying estimates of the speed at which he had been travelling, leading to discrepancies. Secondly, his suggestion that he saw the station wagon and attempted to brake and swerve further to the right was contradicted by other evidence he gave, police witnesses and the physical evidence.

The Court was not satisfied an error had been shown in the findings made by Judge Boulton as to the appellant's line of travel, failure to keep a lookout, speed or failure to brake.

The Physical Evidence

Emphasis was placed on a report which was prepared by Mr Wright, a Senior Constable with the Crash Investigation Unit at the time of the accident who inspected the site two days following the collision. The length, location and deviation of two parallel skid marks on the roadway made by the respondent's station wagon led Mr Wright to draw two conclusions, which were not challenged:

  • The marks placed the respondent's station wagon to the left of the carriageway at both the commencement of the skid and at the time of impact.
  • The station wagon was either at, or very close to, the end of its skid at the time of impact.

This evidence made it impossible to accept the appellant's submission that the respondent breached his duty of care by failing to keep sufficiently to the left side of the road. It was noted that the left tyre of the respondent's station wagon was within 0.6 m of the western edge of the road at the commencement of the skid and, 13 m later at the point of impact, it finished only 0.3 m from the western edge of the road. The Court was not told how the respondent could have reasonably been expected to drive even closer to the western edge of the road than he did, particularly against his evidence that he was "hard up on the left hand side of the road" as he was approaching the curve.

The appellant also failed to satisfy the Court as to how the accident would have been avoided if the respondent had driven closer to the western side of the road as he approached the curve, for three reasons. Firstly, the appellant's motorcycle collided upright and head on with the station wagon, without him braking or swerving, and the point of impact was on the left hand side of the station wagon. Since the respondent applied his brakes harshly and went into a skid, he presumably would have been unable to swerve to the left. Secondly, had the respondent travelled closer to the western edge of the road, or veered as far as he could to the left, the collision would simply have occurred at a point closer to the centre of the bullbar on the station wagon. Thirdly, doing so would have limited even further the respondent's line of vision towards the appellant's motorcycle.

The Court could not reconcile the inconsistency between the physical evidence and the appellant's submission that Judge Boulton should have found that the respondent was travelling at an excessive speed in the circumstances. The evidence of the respondent, his passenger and Mr Wright was that, despite him being prevented from seeing the appellant until very late due to the path the appellant took across the curve, he had come to a complete stop, or nearly a complete stop, at the point of the collision. Accordingly, no error was made in Judge Boulton concluding that it was the appellant's speed, unchecked by any braking, that caused him to collide with the respondent's stationary, or almost stationary, station wagon.

The appellant submitted that the conclusions reached by Mr Wright in relation to the speed of the respondent's vehicle were incorrect. This was based on evidence from the appellant suggesting that his motorcycle had come to rest behind the station wagon, indicating the latter may have been travelling faster than Mr Wright had thought. In rejecting this argument the Court noted that the evidence of the respondent and his passenger was that, following the collision, the appellant landed on the grass some 2 m to the front and side of the station wagon, consistent with the physical evidence in the report by Mr Wright.

The final submission made by the appellant was that the respondent had breached his duty of care by failing to sound his horn as he approached the curve. The Court noted the provisions of s 5B(1)(c) of the Civil Liability Act 2002 and found that the response of a reasonable person would be dictated by a number of factors, including reasonable expectations as to the line that oncoming traffic would follow. The Court highlighted that the findings of Judge Boulton were such that, had the appellant been travelling along the left hand side of the track as he approached the curve, not only would he have seen the respondent's station wagon earlier, but also the respondent would have seen the motorcycle earlier and would have had no difficulty in avoiding a collision. In rejecting the appellant's submission, the Court remarked:

"The logic of the appellant's position is that the driver of every vehicle driving along a track of this kind would be obliged, in the exercise of reasonable care, to sound his or her horn every time the vehicle approached a curve that restricted vision to some extent. However, the exercise of reasonable care did not require the respondent to assume that at every such curve a motorcycle or similar small vehicle would approach on the right hand side of the track, rather than on the left, and at a higher speed than was safe in the circumstances."

In dismissing the appeal the Court endorsed the respondent's submission that it is not permissible to reason from the fact that, in hindsight, action might have been taken that would have avoided a collision to conclude that the defendant failed to exercise reasonable care.


The Court noted that, after he referred to Rule 42.15A of the UCPR and the state of authorities, Judge Boulton considered that the application for indemnity costs was flawed in the sense that the respondent had filed a Defence only two months prior to conveying the Offer of Compromise, by which stage its costs would have been minimal and contained little, if anything, by way of compromise. In dismissing this aspect of the appeal the Court highlighted that Judge Boulton actually referred to the appellant's case as being "rather thin from the outset" and took that into account in determining the offer contained no genuine element of compromise.


When determining whether or not a driver has breached a duty of care to another road user, the evidence of each driver and any witnesses, as well as the physical evidence, must be considered in the context of the response of a reasonable person in the circumstances. A party who conducts this exercise using the benefit of hindsight will not succeed.

In matters involving questions of liability and contributory negligence, insurers should closely consider whether their Offer of Compromise contains a real or genuine element of compromise. This will lend support to an order being made for indemnity costs in the event the plaintiff does not establish negligence. Two factors which should be reviewed are the costs the insurer has accrued at the time the offer is conveyed and the strength or weakness of the plaintiff's case.

1. Sackville AJA, Tobias JA and McColl JA

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.