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

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

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