Bugeja v Jarrett

[2017] NSWCA 219

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Bugeja v Jarrett [2017] NSWCA 219

Hearing dates:

18 August 2017

Date of orders:

01 September 2017

Decision date:

01 September 2017

Before:

Gleeson JA at [1]
Emmett AJA at [2]
Davies J at [5]

Decision:

(1) Appeal allowed.

 

(2) Set aside the judgment of the District Court (Judge Levy SC) of 18 November 2016.

 

(3) In lieu, judgment for the defendants.

 

(4) The plaintiff is to pay the defendants’ costs of the trial.

 

(5) The respondent is to pay the appellants’ costs of the appeal.

(6) The respondent is to have a certificate under the Suitors’ Fund Act 1951 (NSW).

Catchwords:

NEGLIGENCE – motor vehicle accident – whether appellants’ vehicle negligently pulled out onto road and caused accident – whether trial judge’s findings on reliability of witnesses could be supported by the evidence – trial judge gave insufficient weight to inconsistencies in the plaintiff’s account – trial judge erred in assessing evidence of third party involved in the accident as unreliable – trial judge erred in findings on sequence of collisions – appeal upheld – judgment in favour of the appellants

Legislation Cited:

Suitors’ Fund Act 1951 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Jarrett v Bugeja & Anor [2016] NSWDC 309
Nominal Defendant v Smith [2015] NSWCA 339
Tarabay v Leite [2008] NSWCA 259

Category:

Principal judgment

Parties:

Kevin Bugeja (First Appellant)
All Star Commercial Kitchens Pty Ltd (Second Appellant)
Debra Jarrett (Respondent)

Representation:

Counsel:
W Fitzsimmons & M Nesbeth (First and Second Appellants)
D Campbell SC & J Ryan (Respondent)

  Solicitors:
Hall & Wilcox (First and Second Appellants)
Slater & Gordon (Respondent)

File Number(s):

2016/369954

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2016] NSWDC 309

Date of Decision:

18 November 2016

Before:

Levy DCJ

File Number(s):

2012/9479

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 30 March 2010, the respondent was involved in a motor vehicle accident on Victoria Road, Drummoyne where she collided with the rear of a vehicle driven by a Mr Lopez who in turn collided with the rear of a vehicle driven by the first appellant and owned by the second appellant. The second appellant was the owner of the vehicle driven by the first appellant. The respondent brought a claim in negligence against the first and second appellants in the District Court, alleging that the first appellant’s careless entry onto Victoria Road in front of Mr Lopez’s vehicle had caused the accident which resulted in her injuries.

The primary judge found in favour of the respondent on liability. In doing so, he accepted her account of the accident over the accounts given by the first appellant and Mr Lopez, which he found to be unreliable and, in some respects, a reconstruction of the events. Accordingly, the primary judge awarded the respondent $616,250 in damages having found that she was contributorily negligent to the…