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]

Ranked No 1 - Australia's fastest growing law firm' (Legal Partnership Survey, The Australian July 2010)

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”

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
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 you may opt out by clicking here

    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.

    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.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    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.

    By clicking Register you state you have read and agree to our Terms and Conditions