Allen v Taylor

[1999] NSWCA 377

CITATION:	Allen v Taylor [1999] NSWCA 377
FILE NUMBER(S):	CA 40081/98
HEARING DATE(S):	Heard on the papers
JUDGMENT DATE:	15 October 1999
PARTIES :	Shane Roderick Frederick Allen v Joyce Mary Taylor
JUDGMENT OF:	Mason P; Meagher JA; Sheppard AJA

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 86/97 (Wagga Wagga)
LOWER COURT JUDICIAL OFFICER:	Mahoney DCJ

COUNSEL:	Motion heard on the papers No appearances
SOLICITORS:	A: Walsh & Blaire R: Curwood & Partners
CATCHWORDS:	Motion seeking variation of earlier court orders to include issue of contributory negligence as well as damages - Contributory negligence not previously raised in appeal proceedings - Supreme Court Rules Part 40 r9, Part 51 r22 - Whether the respondent ought to be placed in the position in which she would have been if the trial judge had found negligence against her.
ACTS CITED:	Supreme Court Rules
CASES CITED:	Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300
DECISION:	Motion granted

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40081/98
DC 86/97

MASON P
MEAGHER JA
SHEPPARD AJA

Friday, 15 October 1999

Shane Rodney Frederick ALLEN v Joyce Mary TAYLOR

JUDGMENT

1 THE COURT: Judgment in this matter was delivered on 13 May 1999. By majority (Meagher JA and Sheppard AJA; Mason P dissenting) the appeal was allowed, the verdict entered for the respondent, who was the defendant in the proceedings below, was set aside, and in lieu thereof an order was made for a new trial limited to damages. On 19 June 1999 the solicitors for the unsuccessful respondent filed a notice of motion seeking a variation of the orders made on 13 May 1999 by extending the order for a new trial to include an order for a new trial on the issue of contributory negligence as well as on the issue of damages. The motion is opposed. Written submissions have been received from counsel for the parties. The motion has not been the subject of an oral hearing. 2 The facts of the matter are in short compass and are set out in the judgment of Mason P. The appellant (referred to as the opponent in the motion) was injured while driving a 4-wheeled motor cycle across a paddock in a property belonging to his grandmother who was the respondent to the appeal. She is the claimant in the notice of motion. We will continue to refer to the parties as the appellant or the respondent as the case may be. The respondent had asked the appellant to go across to a paddock visible in the distance to look at some heifers that she thought were ready to go to the bull. It was daylight. She invited him to "take the bike", which he had ridden before. 3 The appellant drove straight across the paddock. He noticed that the ground cover was very tall and he realised that he had to be careful. The paddock was covered with rye grass up to about thigh…