Mamo V Surace Case Study

a) Introduction
In the case of Mamo v Surace [2014] NSWCA 58 (13 March 2014) the appellant and passenger of the vehicle Jesse Mamo made an appeal against the respondent and driver of the vehicle, Steven Surace after his Honour Delaney DCJ decided in the preceding case that the respondent did not breach his duty of care after colliding with a cow .
The appeal was heard in The NSW Supreme Court, Court of Appeal. The appellant appealed the issue of “blameless accidents” therefore providing new evidence, with the view that the preceding judge made an error recognising the content and scope of duty of care. He also noted the breach of duty of care and causation .
b) Judgment details
Mamo v Surace (2014) 86 NSWLR 275. The case was originally heard

in The District Court (NSW). The appeal was heard in The NSW Supreme Court, Court of Appeal with presiding judges McColl JA , Ward JA , Tobias AJA .
c) Procedural history
The original proceedings in the case of Mamo Vs Surace 2013 held in The NSW District Court determined that there was no breach in duty of care, also concluding that any such breach of care did not cause the accident . It held that the duty of care was owed to the plaintiff as the passenger in the vehicle. The appellant’s main argument in the preceding case was that the respondent had been negligent whilst driving by taking his eyes off the road and looking at the CD player therefore colliding with a cow and causing injury.
d) Facts
On 30th of March 2008 both the respondent and appellant were driving to a party . The route which was familiar to the respondent was dark; however weather conditions were fine and as a result there was no cause for concern. The car had taken some time to warm up and this kept the respondent driving under the speed limit. After driving approximately 100metres the respondent briefly took his eyes of the road to use the CD player, during this short time a cow appeared from the left side and ran in front of the car . Having had no time to react, the car collided with the cow resulting in the passenger (appellant) to be hospitalised.
e) Legal issues

Doing everything necessary to avoid the collision the respondent believed was impossible and his duty of care was to take only the foreseeable necessary precautions and to ensure the safety of his passenger.

Any reaction to a potential risk could only be considered at the time that it affected the respondent aswas cited in Manley v Alexander.
It was found in the respondents submissions that a duty of care was necessary. The issue of negligence he believed was unsustainable as the risks were minimal and it was not unusual to take one’s eyes off the road. Causation was not satisfied as the judge concluded that the respondent would not have had enough time in any circumstance to avoid a collision with the cow.

Finally, the respondent submitted that without any contradiction from the appellant that any breach of duty of care could not be sustained and any issue of liability unlike in Jones v Dunkel would have no basis.

f) The law

The respondent (driver) is required to take reasonable care when operating his vehicle to ensure the safety of the appellant. The primary judge highlighted that "content of this duty depends on the circumstances of the case". However, the respondent breached his duty of care by taking his eyes off the road, violating s 5B and s 5C of the Civil Liability Act (NSW) 2002. The respondent nevertheless is not considered negligent as outlined in s5B (1) if he could prevent the outcome of a risk that was not

foreseeable.

The principles in Cook vs Cook were applied to the case giving the respondent the responsibility to ensure no injury was caused to the appellant. The standard of care outlined in Cook v Cook is that which "could reasonably be expected of an experienced and competent driver" .
In Manley v Alexander it was also sighted that the application of reasonable care requires, 'reasonable attention to all that is happening on and near the roadway that may present a source of danger'.

The issue of whether reasonable care was implemented by the driver is not determined by whether or not he could have reacted differently so as to produce a different outcome.

g) The reasoning

His Honour held that at the time of driving, the low risk of coming across an object on the road that ultimately led the respondent to momentarily take his eyes off the road was not a breach of the respondent’s duty of care and was the type of behaviour that any normal driver was likely to carry out.

As pointed out by Meagher JA in Marien v Gardiner it is not possible that the driver could foresee and react to any event that could take place within the area surrounding the vehicle. Therefore, the driver could not have breached his duty of care in any circumstance that an object by chance is to collide with a vehicle on the road.

Given the facts of the case were not of contention, the events of that night the court heard were what appeared to be instantaneous and had the respondent not taken his eyes off the road for those mere 4 seconds the same outcome is likely to have

transpired.

h) A party is bound by the conduct of their case

Based on the principle of law, it is unlikely that an appeal made subsequent to an initial court ruling would be accepted, notably when new arguments are brought forward. In circumstances where the facts of a case are not contradicted by either party as in the case of Mamo v Surace and where the appellant fails to use the first instance to provide all possible evidence it is unlikely that an appeal will be granted. However in the interests of justice there are exceptional circumstances which allow for an appellant to raise new arguments against an inadequate respondents defence.
i) Mobile phones and driving

Unlike the common act of using the radio which does not require as much distraction as a mobile phone, it is unlikely that this case would be used to excuse the use of a mobile phone while driving. Mobile phones are highly interactive and therefore require more focus and time off the road as opposed to a few seconds it would take to change a CD or look at the petrol gauge.