Osman By His Tutor Osman v Clement (2022) NSWDC
Incident date – 15 December 2017
Decision delivered – 31 August 2022
Background
The plaintiff, then only 19 years of age and with a provisional driver’s license, sustained serious physical injuries, including a traumatic brain injury, as a result of the accident.
The plaintiff intended to drive straight through an intersection but in doing so collided with the defendants vehicle, a truck, as the defendant was attempting to make a right turn through the intersection.
Liability
The plaintiff alleges that the defendant was negligent by failing to execute a safe right-hand turn, in a way which would have avoided collision with the plaintiff’s vehicle.
The defendant denied that the insured driver was negligent and also that it was a result of that negligence that the plaintiff suffered personal injuries. Furthermore, the defendant raised a defence of contributory negligence. Particularly, the defendant alleged that the plaintiff entered the intersection against a red traffic light and failed to enter through the intersection in a way that would have permitted him to avoid collision with the defendant’s turning vehicle.
The main factual dispute concerned what the colour of the traffic lights were facing the plaintiff as he proceeded through the intersection, and that as a result there be a deduction for contributory negligence.
Both parties relied on expert reports regarding a reconstruction of the circumstances of the accident. There was also an extensive police investigation which included several witnesses to the accident.
Findings
The court ultimately found that the defendant was negligent in that he breached his duty of care to the plaintiff by failing to keep a proper lookout when attempting to turn his truck.
However, the court also found that there was contributory negligence due to the plaintiff driving through the intersection when the light was red; ‘if only just’. The circumstance that the plaintiff infringed a road rule may not be conclusive of breach, but this rule is fundamental. The court found that the appropriate deduction for contributory negligence is 50%.
After deductions for contributory negligence., the plaintiff was awarded damaged in the sum of $988,703.