Fitzgerald v Dansey

[2001] NSWCA 339

CITATION:	Fitzgerald v Dansey [2001] NSWCA 339
FILE NUMBER(S):	CA 40981/00
HEARING DATE(S):	18 September 2001
JUDGMENT DATE:	24 October 2001
PARTIES :	Brad Peter Fitzgerald by his tutor Robyn Lynette Fitzgerald Craig Dansey
JUDGMENT OF:	Powell JA at 1; Fitzgerald AJA at 2; Sperling J at 27

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	2037/99
LOWER COURT JUDICIAL OFFICER :	Cooper DCJ

COUNSEL:	Mr R McIlwaine SC with Mr I Cullen for the Appellant Mr P Neil SC with Mr G Travers for the Respondent
SOLICITORS:	Paul A Curtis & Co for the Appellant W R Harvey & Associates for the Respondent
CATCHWORDS:	Damages assessed under Motor Accidents Act - appeal against quantum - apportionment for contributory negligence - non-economic loss: whether "a most extreme case" - interest: whether "appropriate" for the defendant to have made an offer - ND
LEGISLATION CITED:	Motor Accidents Act 1988, s73, s79, s79A
CASES CITED:	Abalos v Australian Postal Commission (1990) 171 CLR 167 Arthur Robinson (Grafton) Pty Ltd v Carter (1970) 122 CLR 649 Birch Brothers Ltd v Brown [1931] AC 605 Devries v Australian National Railways Commission (1993) 177 CLR 472 Dunnet v Brennan [2000] NSWCA 211 House v The King (1936) 55 CLR 499 Nominal Defendant v Gardikiotis (1994) 19 MVR 307 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 Precision Plastics Pty Ltd v Damir (1975) 132 CLR 362 Sharman v Evans (1977) 138 CLR 563 Studer v Boettcher [2000] NSWCA 263 Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25
DECISION:	As per para 113 of the judgment.

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

POWELL JA
FITZGERALD AJA
SPERLING J

Wednesday, 24 October 2001

40981/00 Fitzgerald v Dansey

Judgment

: I agree with Sperling J.

: The circumstances giving rise to this appeal are set out in the reasons for judgment of Sperling J. I agree with the other members of the Court that the cross-appeal should be dismissed. I will deal with the appeal briefly.

APPORTIONMENT

3 I agree with the other members of the Court that the trial judge’s apportionment of responsibility for the appellant’s injuries should not be altered. The High Court and this Court (see, e.g. Dunnet v Brennan [2000] NSWCA 211) repeatedly reaffirm the principles which restrict an appellate court’s power to review a trial judge’s decision on apportionment. Despite those principles, the Court is regularly asked to change the apportionment determined at trial. As with most of the appeals in which challenges are made to apportionment, this is not a case in which the Court could legitimately interfere with the trial judge’s decision.

4 However, I do not agree with the other members of the Court that the trial judge might reasonably have concluded that the appellant alone was responsible for his own injuries. Although the respondent advanced that submission in seeking to uphold the trial judge’s refusal to award interest, the respondent’s argument…