Basten JA at [1]; Macfarlan JA at [40]; Simpson J at [54]
Decision:
(1) Allow the appeal and cross-appeal.
(2) Set aside the judgment and order as to the costs of the trial, made in the District Court on 7 December 2012.
(3) In place of the judgment of the District Court, order that the defendant pay to the plaintiff damages in an amount of $265,934, such judgment to take effect from 7 December 2012.
(4) Make no order as to the costs of the proceedings in this Court.
(5) In the absence of agreement, the parties have leave to file and serve within 14 days of the date of this judgment a notice of motion with submissions not exceeding three pages (together with any offers of compromise relied upon) as to:
(a) the calculation of the judgment in order (3) above; (b) any variation of order (4); and (c) the orders sought with respect to costs in the District 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:
DAMAGES - motor vehicle accident - damages for commercial domestic assistance - gratuitous domestic assistance currently provided - whether gratuitous domestic assistance would continue - Motor Accidents Compensation Act 1999 (NSW), ss 128, 141B
TORTS - negligence - contributory negligence - motor vehicle accident - whether error in finding no contributory negligence by pedestrian - failure of plaintiff to use a pedestrian crossing - failure to keep a proper lookout - Motor Accidents Compensation Act 1999 (NSW), s 138
Review of the Law of Negligence: Final Report (September 2002), pars 8.7, 8.11
Category:
Principal judgment
Parties:
Jarryd Adam Gordon (Appellant/Cross-Respondent) Kim…
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.
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Details
AGLC
Gordon v Truong [2014] NSWCA 97
Case
[2014] NSWCA 97
Decision Date
CaseChat Overview and Summary
In *Gordon v Truong*, the New South Wales Court of Appeal considered an appeal and cross-appeal concerning damages awarded following a motor vehicle accident. The primary dispute revolved around the assessment of damages for commercial domestic assistance and the question of contributory negligence by the plaintiff pedestrian.
The court was required to determine whether the trial judge erred in finding no contributory negligence on the part of the plaintiff, specifically in relation to the plaintiff's failure to use a pedestrian crossing and to keep a proper lookout. Additionally, the court had to assess whether gratuitous domestic assistance currently provided to the plaintiff would continue, a crucial factor in calculating damages under the *Motor Accidents Compensation Act 1999* (NSW).
The Court of Appeal allowed both the appeal and the cross-appeal, setting aside the original District Court judgment and costs order. The court substituted a new judgment, ordering the defendant to pay the plaintiff damages of $265,934, effective from the date of the original judgment. No order was made as to the costs of the appeal proceedings, with parties granted leave to make further submissions regarding the calculation of the judgment, any variation of costs orders, and the costs of the District Court proceedings.
Orders
Orders of the court
(1) Allow the appeal and cross-appeal.
(2) Set aside the judgment and order as to the costs of the trial, made in the District Court on 7 December 2012.
(3) In place of the judgment of the District Court, order that the defendant pay to the plaintiff damages in an amount of $265,934, such judgment to take effect from 7 December 2012.
(4) Make no order as to the costs of the proceedings in this Court.
(5) In the absence of agreement, the parties have leave to file and serve within 14 days of the date of this judgment a notice of motion with submissions not exceeding three pages (together with any offers of compromise relied upon) as to:
(a) the calculation of the judgment in order (3) above;
(b) any variation of order (4); and
(c) the orders sought with respect to costs in the District 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.]