Egan v Mangarelli

Case [2013] NSWCA 413

Court of Appeal

New South Wales
Case Title: Egan v Mangarelli
Medium Neutral Citation: [2013] NSWCA 413
Hearing Date(s): 2 August 2013
Decision Date: 05 December 2013
Before: Barrett JA at [1];
Ward JA at [2];
Tobias AJA at [3].
Decision:

1. Appeal dismissed.
2. The appellant to pay the respondents' costs of the appeal.
3. Cross-appeal dismissed.

[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: TORTS - negligence - breach of duty of care - motor vehicle accident - the appellant was travelling on a bicycle and went under a bus - whether the driver breached his duty of care by failing to keep a look-out - Manley v Alexander [2005] HCA 79 considered - whether the driver was paying "reasonable attention" to what was happening on or near the roadway - held that the driver did not breach the duty of care

TORTS - negligence - contributory negligence - whether the trial judge properly compared the degree of the parties culpability and the relative importance of each party's acts in finding the appellant's contributory negligence to be 70 per cent - Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 applied - no error in finding appellant's contributory negligence to be 70 per cent

DAMAGES - torts - negligence - personal injury - whether trial judge erred in allowing cost of certain prosthesis when the appellant was unlikely to use the prosthesis to fullest extent - whether trial judge erred in allowing certain amounts for housing modifications - whether trial judge erred in allowing amounts for past domestic care - whether primary judge failed to discount amount awarded for future domestic care when the appellant was a smoker
Legislation Cited: Motor Accident Compensation Act 1999 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Anikin v Sierra [2004] HCA 64; (2004) 211 ALR 621; (2004) 79 ALJR 452
Bradshaw v McEwans Pty Limited [1951] HCA 480; (1951) 217 ALR 1
Draca v Silva [2012] NSWCA 312
Egan v Mangarelli & Ors [2012] NSWSC 867
Egan v Mangarelli & Ors (No 2) [2012] NSWSC 1226
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Joslyn v Berryman & Anor [2003] HCA 34; (2003) 214 CLR 552
Kuru v New South Wales [2008] HCA 26; (2008) 236 CLR 1
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Manley v Alexander [2005] HCA 79; (2005) 223 ALR 228; (2005) 80 ALJR 413
Pledge v Roads and Traffic Authority [2004] HCA 13; (2004) 78 ALJR 572
Podrebersek v Australian Iron &…

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Egan v Mangarelli [2013] NSWCA 413
Case
[2013] NSWCA 413
Decision Date

CaseChat Overview and Summary

The appeal concerned a motor vehicle accident where the appellant, a cyclist, sustained injuries after going under a bus driven by the respondent. The appellant alleged the respondent breached his duty of care by failing to maintain a proper lookout. The court was required to determine whether the respondent, as the driver, failed to pay reasonable attention to events on or near the roadway, thereby breaching his duty of care.

The court also considered whether the trial judge had erred in assessing the appellant's contributory negligence at 70 per cent, specifically in comparing the culpability and the relative importance of each party's actions. Further issues related to damages included whether the trial judge had erred in awarding the cost of a prosthesis the appellant was unlikely to fully utilise, in allowing certain amounts for housing modifications, and in awarding amounts for past domestic care. The court was also asked to consider whether the primary judge failed to discount the award for future domestic care, given the appellant was a smoker.

Applying the principles from *Manley v Alexander* [2005] HCA 79, the court found that the respondent driver had not breached his duty of care. Regarding contributory negligence, the court applied the principles from *Podrebersek v Australian Iron & Steel Pty Ltd* [1985] HCA 34 and concluded there was no error in the trial judge's assessment of the appellant's contributory negligence at 70 per cent. The court also found no error in the trial judge's awards for damages, including the prosthesis, housing modifications, and domestic care, and did not consider it necessary to discount future domestic care based on the appellant's smoking.

The appeal was dismissed, and the appellant was ordered to pay the respondents' costs of the appeal. The cross-appeal was also dismissed.

Orders

Orders of the court

1. Appeal dismissed.

2. The appellant to pay the respondents' costs of the appeal.

3. Cross-appeal dismissed.

[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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