Australia: There is no "give way" when keeping a proper lookout

Curwoods case note
Last Updated: 5 September 2012
Article by Joseph Vermiglio

O'Neill v Liddle [2012] NSWCA 267

Judgment date: 29 August 2012

Jurisdiction: New South Wales Court of Appeal1

In Brief

  • Liability will not automatically be determined against a driver who proceeds through a Give Way sign. All of the circumstances need to be considered in determining which party had failed to show reasonable care.
  • An assessment of loss of future earning capacity is not solely dependant upon the plaintiff's prior or current income. It involves an assessment of possibilities not probabilities and a judge is able to take into consideration the plaintiff's work ethic post-accident to arrive at such conclusions.


On 23 April 2007, the plaintiff was injured when her vehicle was struck by the defendant's as she proceeded through an intersection. The plaintiff sustained severe injuries to her right arm.

The collision occurred at the intersection of Summer and Spring Streets, Orange at approximately 4 pm. The plaintiff was travelling along Spring Street and approached a Give Way sign. The defendant was travelling along Summer Street where the prevailing speed limit was 50 km/h. The sun was low in the western sky and was behind the defendant's vehicle when viewed from the east.

The plaintiff stopped at the Give Way sign and her view of Summer Street to the west was obscured by the glare of the sun. She entered the intersection without realising that the defendant's vehicle was approaching from the west. The plaintiff's vehicle was struck by the defendant's, near the rear wheel. The plaintiff's vehicle rotated counter-clockwise, collided with the Give Way sign and overturned.

Primary Judgment

Blackmore DCJ held the defendant liable for the accident. In arriving at this conclusion, his Honour pointed out the fact that a plaintiff who drives through a Give Way sign prior to a collision does not necessarily determine the negligence of the other driver. The correct approach was to assess whether the defendant had failed to show reasonable care.

His Honour held that the defendant had failed to take reasonable care in approaching the intersection. Blackmore DCJ made this finding based on two interrelated facts. The first was that the defendant had initially seen the plaintiff's vehicle in her peripheral vision when it was some distance from the intersection. His Honour held that she therefore had time to assess its speed and note that it was approaching a Give Way sign. If the defendant had kept the plaintiff's vehicle under observations as she was approaching the intersection she would have been in a much better position to avoid the collision. Secondly, the plaintiff's vehicle had already crossed the intersection when the vehicles collided. There was time for the defendant to have kept the plaintiff's vehicle under observation.

His Honour rejected the defendant's submission that she had merely made a reasonable assumption that the plaintiff's vehicle would stop at the Give Way sign. Rather, his Honour found that the defendant was likely not paying proper attention to her driving at a time immediately before the accident. However, his Honour found the plaintiff guilty of contributory negligence and reduced her damages by 55%.

Blackmore DCJ opined that the plaintiff's loss of earning capacity should be determined in accordance with average weekly earnings for females. At the time of the accident, the plaintiff was working as a kitchen hand at a takeaway shop, earning $455 net per week. After the accident and between 3 November 2009 and 30 June 2009, she obtained clerical employment with NRMA where she earned $397 net per week. Thereafter, her earnings with NRMA exceeded her pre-accident earnings, which amounted to $619 net per week. There was no evidence that the plaintiff, but for her injuries, would have been able to earn more than she was earning at NRMA. The plaintiff was unqualified and she "did not display any exceptional intellectual traits that might see her earn more than average weekly earnings". The difference between the plaintiff's earnings at the time of trial and average weekly earnings was $302 net per week.

The defendant appealed the decision in relation to liability and award for future economic loss.

Court of Appeal Judgment

In addressing the question of negligence, the Court of Appeal referred to s 5B(1)(c) of the Civil Liability Act 2005 (CLA) which states:

"A person is not negligent in failing to take precautions against a risk of harm unless in the circumstances, a reasonable person in the person's position would have taken those precautions."

Although the trial judge did not expressly refer to s 5B of the CLA, the statement of principle to which the primary judge referred in Manley v Alexander 2 was relevant. In that case the defendant was held liable, subject to a reduction in damages of 70% for failing to see the plaintiff who was dressed in dark clothes and lying on the road at 4 am. Despite the remote possibility that someone would be found lying on a road, the reasonable care of a driver was enunciated in the following:

"... the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events." 3

The Court of Appeal referred to the observations made by the High Court in Sibley v Kais 4 :

"...the failure to take reasonable care in given circumstances is not necessarily answered by a reliance upon the expected performance by the driver of the give way vehicle of his obligations under the regulations ...

... The obligation of each driver of two vehicles approaching an intersection is to take reasonable care. What amounts to 'reasonable care' is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or form his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected." 5

In the present case, the defendant had failed to keep a proper look out and, if she had done so, she would have avoided the collision by a minor adjustment to her speed. This finding was supported by the fact that the plaintiff had almost cleared the intersection and the defendant would have had a significant period of time when the vehicle was in her line of vision. The defendant also conceded that she was not keeping a proper lookout on the road ahead as she did not see the plaintiff's vehicle in time, her view was unobstructed. Accordingly no error was found with regard to either the finding of primary liability or contributory negligence.

The Court of Appeal held there was sufficient evidence from which the primary judge could infer that the plaintiff's earning capacity, but for the accident, would have been equivalent to average weekly earnings for females. The plaintiff, although an average student, who left after year 10, was a positive person. She worked in a Gourmet Takeaway business as a cook and waitress and her aspirations was to one day open a sit-in restaurant. Her disabilities prevented her working as a cook or a waitress. She had returned to work as soon as the wires and screws had been removed from her arm and had only taken 44 hours such leave over two and a half years. The primary judge accepted that she might have found work as a cook. He was entitled to take into account that the plaintiff clearly intended to follow a career and to maximise her potential to earn income and had shown determination and resourcefulness in her post-injury employment activities.

The Court confirmed the position in State of New South Wales v Moss 6 which is that income earned before the injury is relevant only as an evidentiary aid in the assessment of damages for loss of earning capacity. What is involved is any assessment of the loss of chance to earn:

"It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities." 7

Ultimately, the unrealistic nature of her aspirations to open a restaurant did not rule out alternative careers in the hospitality industry. The challenge to the trial judge's findings was unsuccessful.


When determining liability, the fact that one party involved in the accident proceeded through a Give Way sign will not be determinative. The Court has made it clear that all the circumstances need to be considered. One motorist cannot assume another will obey road rules. Exercising reasonable care on the road involves keeping a proper lookout at all times, especially for those who do not have right of way.

An assessment of loss of earning capacity is not determined solely by the plaintiff's prior income. It is an assessment of possibilities and the chance lost by that party in earning such amounts. The judge or assessor may consider the plaintiff's post-accident circumstances when arriving at a loss of earning capacity.


1 Macfarlan and Barrett JJA, Sackville AJA
2 [2005] HCA 79
3 [2005] HCA 79 at 12 per Hayne J
4 [1967] HCA 43
5 [1967] HCA 43 at 427
6 [2000] NSWCA 133
7 [2000] NSWCA 133 at [71]

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