Cheng v Geussens - [2014] NSWCA 113

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Cheng v Geussens [2014] NSWCA 113
Hearing dates: 21 March 2014
Decision date: 08 April 2014
Before: Basten JA at [1];
Barrett JA at [33];
Ward JA at [41]
Decision:
(1) Grant the applicant leave to appeal.
(2) Allow the appeal.
(3) Set aside order (b) made in the District Court on 6 February 2013 and in place thereof direct that the plaintiff's damages be reduced by 67% on account of his contributory negligence.
(4) The respondent is to pay the costs of the applicant/appellant in this Court.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: TORT - negligence - contributory negligence - motor vehicle accident - cyclist struck by car - trial judge not satisfied that either party had green light - both parties failed to keep proper lookout - assessment of proportionate responsibility should be made on common factual basis
Legislation Cited: Civil Liability Act 2002 (NSW), ss 3B, 5B, 5C, 5R
District Court Act 1973 (NSW), s 127
Motor Accidents Compensation Act 1999 (NSW), s 138
Cases Cited: Boyd v Leftwich (1982) 43 ALR 280
Daly v Thiering [2013] HCA 45; 88 ALJR 67
Folpp v Waring (1998) 28 MVR 544
Hercules Textile Mills Pty Ltd v K & H Textile Engineers Pty Ltd [1955] VLR 310
Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492
Purcell v Watson (1979) 26 ALR 235
Stove v Hall [2008] ACTCA 21
Turkmani v Visvalingam [2009] NSWCA 211; 53 MVR 176
Wheeler v French (1990) 11 MVR 354
Category: Principal judgment
Parties: Yingen Cheng by his tutor Gendi Qian (Applicant)
Joachim Geussens (Respondent)
Representation: Counsel:
P Segal (Applicant)
J B Turnbull (Respondent)
Solicitors:
McInnes Wilson (Respondent)

File Number(s): 2013/62444
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2014-02-06 00:00:00

Before:

Elkaim DCJ

File Number(s):

2011/411308

Judgment

BASTEN JA: This matter involves an extremely simple point of principle which, according to counsel, is not the subject of existing authority.

The facts which give rise to the problem fall within a brief compass. Shortly before 7am on 15 July 2010 the plaintiff, Yingen Cheng, was riding his bicycle on the footpath on the northern side of Coogee Bay Road in an easterly direction (towards the beach where he intended to fish). He came to the intersection with Carrington Road. Mr Joachim Geussens, the defendant, was driving his car in a northerly direction down Carrington Road at the intersection with Coogee Bay Road. The vehicle had proceeded across the intersection when it collided with the plaintiff on his bicycle. Each…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cheng v Geussens

Details

AGLC: Cheng v Geussens [2014] NSWCA 113
Case: [2014] NSWCA 113
Decision Date: 08 April 2014

CaseChat Overview and Summary

In *Cheng v Geussens*, the Court of Appeal of New South Wales considered an appeal concerning a motor vehicle accident where a cyclist was struck by a car. The primary dispute revolved around the apportionment of responsibility for the collision, with the trial judge finding that neither party had a green light and that both had failed to keep a proper lookout.

The central legal issues before the Court of Appeal were whether the trial judge had erred in assessing the proportionate responsibility of the parties and, consequently, in the quantum of damages awarded to the plaintiff. Specifically, the court had to determine if the factual basis upon which the assessment of contributory negligence was made was sound, and if the resulting reduction in damages was appropriate.

The Court of Appeal reasoned that an assessment of proportionate responsibility should be made on a common factual basis, and that the trial judge's findings did not adequately reflect this. The court found that the plaintiff cyclist bore a greater degree of responsibility for the accident than was initially determined. Consequently, the appeal was allowed, the original order setting aside the damages award was varied, and the plaintiff's damages were reduced by 67% due to contributory negligence. The respondent was ordered to pay the costs of the appeal.

Orders

Orders of the court

(1) Grant the applicant leave to appeal.

(2) Allow the appeal.

(3) Set aside order (b) made in the District Court on 6 February 2013 and in place thereof direct that the plaintiff's damages be reduced by 67% on account of his contributory negligence.

(4) The respondent is to pay the costs of the applicant/appellant in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Cheng v Geussens [2014] NSWCA 113
Hearing dates:	21 March 2014
Decision date:	08 April 2014
Before:	Basten JA at [1]; Barrett JA at [33]; Ward JA at [41]
Decision:	(1) Grant the applicant leave to appeal. (2) Allow the appeal. (3) Set aside order (b) made in the District Court on 6 February 2013 and in place thereof direct that the plaintiff's damages be reduced by 67% on account of his contributory negligence. (4) The respondent is to pay the costs of the applicant/appellant in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	TORT - negligence - contributory negligence - motor vehicle accident - cyclist struck by car - trial judge not satisfied that either party had green light - both parties failed to keep proper lookout - assessment of proportionate responsibility should be made on common factual basis
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 3B, 5B, 5C, 5R District Court Act 1973 (NSW), s 127 Motor Accidents Compensation Act 1999 (NSW), s 138
Cases Cited:	Boyd v Leftwich (1982) 43 ALR 280 Daly v Thiering [2013] HCA 45; 88 ALJR 67 Folpp v Waring (1998) 28 MVR 544 Hercules Textile Mills Pty Ltd v K & H Textile Engineers Pty Ltd [1955] VLR 310 Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 Purcell v Watson (1979) 26 ALR 235 Stove v Hall [2008] ACTCA 21 Turkmani v Visvalingam [2009] NSWCA 211; 53 MVR 176 Wheeler v French (1990) 11 MVR 354
Category:	Principal judgment
Parties:	Yingen Cheng by his tutor Gendi Qian (Applicant) Joachim Geussens (Respondent)
Representation:	Counsel: P Segal (Applicant) J B Turnbull (Respondent) Solicitors: McInnes Wilson (Respondent)
File Number(s):	2013/62444
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2014-02-06 00:00:00 Before: Elkaim DCJ File Number(s): 2011/411308