Independent expert accident investigation and reconstruction evidence can be very influential to the determination of and/or apportionment of liability.

Below we examine Eicas v Dawson [2016] SASCFC 124 where the trial judge’s decision to reduce the plaintiff’s damages by 20% for contributory negligence was overturned on appeal to the Full Court of the Supreme Court of South Australia. We query whether expert reconstruction evidence may have altered the final outcome.


The plaintiff was riding a motorcycle north along an Adelaide city street, in the left lane where parked vehicles at the side of the road blocked part of the lane. The defendant was also driving north, slightly ahead of the plaintiff’s motorcycle, in the right lane.

It was accepted that, although a car would not have been able to drive in the space in the left lane, the space was sufficient for a motorcycle.

The defendant pulled her vehicle from the right lane to the left in an attempt to enter a car park at the side of the road and hit the plaintiff’s motorcycle throwing him over the handlebars. He sustained serious injuries.

It was accepted that the defendant’s left turn was sudden and undertaken without viewing her passenger side mirror.

The parties were in dispute as to whether the plaintiff indicated before making the left turn.


On the evidence before him, the trial judge found that the plaintiff was riding too close to the defendant’s vehicle when the defendant saw the parking space. He also found that the plaintiff and the defendant were travelling at different speeds.

Further, he found that the plaintiff should not have been riding in the left lane due to the lane being partly encumbered by the parked vehicles.

He reduced the plaintiff’s damages by 20% for contributory negligence inter alia for failing to take sufficient care of his own safety.

The Plaintiff’s Appeal to the Full Court of the Supreme Court of South Australia

The Full Court disagreed with the trial judge’s finding that the plaintiff’s motorcycle was too close to the defendant’s vehicle whilst also finding that the vehicles were travelling at different speeds. The Full Court found that these two findings of fact could not, logically, both be accepted.

The Full Court reconsidered all available evidence as to liability and considered authorities on driver obligations and contributory negligence. The Court turned its attention to the established authority that a driver need not drive so defensively that there is no risk of an accident (at para 53):

“The question where contributory negligence is alleged is whether the defendant has proved that the plaintiff has failed to protect his or her person against damage. The obligation on the appellant was to take reasonable care for his own safety. Whilst that concept encompasses driving defensively it does not mean driving in such a manner as to avoid all risk. The matter is to be determined on the facts of the case”.

The Full Court disagreed with the trial judge’s finding that travelling at 50kph in the left lane whilst parked cars protruded into the lane was in of itself illegal or negligent. The Full Court found that once the defendant commenced the turn, the plaintiff could not avoid the collision.

Accordingly, the Full Court found that the defendant had failed to prove that the plaintiff had been contributorily negligent and it overturned the decision of the trial judge, awarding no reduction for contributory negligence.

Accident investigations and reconstruction

In this case the trial judge was critical of the investigations conducted by the investigating police officers.

The trial judge said (at para 7):

“… notwithstanding the seriousness of the accident it was very poorly investigated. No accident plan or diagram was drawn up, no measurements were taken and no statements were taken from any of the three occupants of the defendant’s car, despite their offers at the time to give full statements.”

As a consequence, the trial judge was limited by the evidence submitted during the trial to make findings of fact on liability.

A proper determination of how an accident has occurred can have a critical impact on findings of liability.

In this case, it could have been relevant to whether the injured plaintiff was contributorily negligent for the accident. Would the Appeal Court have upheld a finding of a 20% contribution if the Trial Judge had been presented with an accident reconstruction expert’s report that supported the finding he had relied upon in making his findings?