Dunnet v Brennan

[2000] NSWCA 211

Reported Decision: [2000] 31 MVR 362

New South Wales

Court of Appeal

CITATION:	Dunnet v Brennan [2000] NSWCA 211
FILE NUMBER(S):	CA 40189/99
HEARING DATE(S):	04/08/00 (Reasons for judgment given 11/08/00)
JUDGMENT DATE:	4 August 2000
PARTIES :	Robert Dunnet and David John Kerr (Appellants) Daniel Alexander Brennan (Respondent)
JUDGMENT OF:	Priestley JA at 1; Powell JA at 2; Fitzgerald JA at 3

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	9265/97
LOWER COURT JUDICIAL OFFICER :	Dent DCJ

COUNSEL:	J.R. Glissan QC / K.J. Kelleher (Appellant) C.E. O'Connor QC / C. Charteris (Respondent)
SOLICITORS:	Ferguson Holz (Appellant) Brennan Blair & Tipple (Respondent)
CATCHWORDS:	Negligence - whether driver of vehicle negligent when he continued to drive with passenger on the roof - whether the percentage of contributory negligence apportioned by the trial judge was too low - whether the damages awarded for non-economic loss, economic loss, future economic loss and future care by the trial judge were excessive. - ND
LEGISLATION CITED:	Law Reform (Miscellaneous Provisions) Act 1965
CASES CITED:	Martin v Howard (1983) Tas.R. 188 Wynbergen v Hoyts Corporation Pty Ltd (1997) 129 ALR 25 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
DECISION:	Appeal dismissed, with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40189/99
DC 9265/97

PRIESTLEY JA
POWELL JA
FITZGERALD JA

FRIDAY 11 AUGUST 2000

DUNNET v BRENNAN

JUDGMENT

1   PRIESTLEY JA: I am in accord with the reasons given by Fitzgerald JA for the orders made by this Court on 4 August 2000 for dismissing the appeal in this case, with costs. 2   POWELL JA: The reasons set out by Fitzgerald JA in his Judgment encompass the reasons which led me to join in the orders made by the Court on 4 August last. 3   FITZGERALD JA: The respondent, Daniel Alexander Brennan, was injured when he fell from a motor vehicle owned by the father of one of his friends, the appellant Robert Dunnet, and driven by another of his friends, the other appellant David John Kerr. The trial judge held that both Kerr and the respondent were negligent. The damages awarded to the respondent were reduced by 25 per cent because of his contributory negligence. 4   The appellants’ appeal in respect of both damages and liability was dismissed at the conclusion of the hearing on the basis that these reasons would be provided later.

5   The accident was the result of youthful irresponsibility. The parties to the appeal, the respondent’s brother, Matthew, and some of their friends attended a surf lifesaving carnival on 6 May 1994 at Kingscliff Beach. Some of the group, including the respondent, competed in the carnival. Later, a number, including the parties, went to a hotel in Kingscliff. Kerr is a diabetic and only had two schooners of beer. Others, including the respondent and his brother and Dunnett, drank a considerable amount of alcohol and became “well and truly intoxicated”. At about 7.30pm, the parties and the respondent’s…