A reasonable response in the "agony of the moment" - considering contributory negligence

Stuart v Walsh [2012] NSWCA 186

Court of Appeal¹

In Brief

• District Court findings of negligence and assessment of contributory negligence at ten percent overturned by Court of Appeal to verdict and judgment for the appellants.
• When answering to an allegation of negligence, the question is whether the defendant responded reasonably to circumstances with which they were presented and not whether there was an alternative course of action.

Background

At approximately 4 pm on 28 May 2007, the respondent, Dr Walsh, who was 73 years of age at the time of accident, was riding his bicycle and was struck and injured by a truck owned by the second appellant. The truck was driven by the first appellant, Mr Stuart, an employee of the second appellant. Allianz Australia Insurance Limited was the CTP insurer of the truck.