Gulic v O'Neill

Case [2011] NSWCA 361


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Gulic v O'Neill [2011] NSWCA 361
Hearing dates:4 October 2011
Decision date: 25 November 2011
Before: Campbell JA at [1]
Whealy JA at [2]
James J at [82]
Decision:

(1) Leave to extend the time for filing a Notice of Appeal is granted nunc pro tunc;

(2) The appeal is allowed in part;

(3) Judgment entered by the primary judge is set aside and in lieu thereof, judgment is entered in the sum of $259,815.73;

(4) The appeal is otherwise dismissed;

(5) Each party pay his own costs of the appeal.

[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 - motor vehicle accident - respondent admitted negligence -whether primary judge's finding of contributory negligence was reasonable - whether apportionment correct - marked misapplication of apportionment exercise warranting appellate intervention

TORTS - negligence - challenge to quantum of damages found by primary judge -challenge to primary judge's credit findings - award of damages upheld
Legislation Cited: Civil Liability Act 2002 s 13
Motor Accidents Compensation Act 1999 s 126
Cases Cited: Container Terminals Australia v Huseyin [2008] NSWCA 320 at [8]
Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]
Elite Protective Personnel Pty Ltd v Salmon [No 2] [2007] NSWCA 373 at [6] - [11]
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Hill v Richards [2011] NSWCA 291 at [23]
James v Surf Road Nominees Pty Ltd [No 2] [2005] NSWCA 296 at [31] - [37]
Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 at [56]
Manly Council v Byrne [2004] NSWCA 123 at [103] - [105]
Mason v Demasi [2009] NSWCA 227 at [2]
Mastronardi v State of New South Wales [2009] NSWCA 270 at [87]
Penrith City Council v Parks [2004] NSWCA 201
Podrebersek v Australian Iron & Steel Ltd (1985) 59 ALR 529 at 532 - 533
Roads & Traffic Authority NSW v Dederer [2007] HCA 42; 234 CLR 330 at 379 per Kirby J
Turkmani v Visvalingam & Ors [2009] NSWCA 211; 53 MVR 176 per Beazley JA
Category:Principal judgment
Parties: Aleksander Gulic (Appellant)
Brian Forbes O'Neill (Respondent)
Representation: Counsel
D E Baran (Appellant)
K Rewell SC (Respondent)
Solicitors
NSW Compensation Lawyers (Appellant)
Sparke Helmore Lawyers (Respondent)
File Number(s):2010/387424
Publication restriction:Nil
 Decision under appeal 
Date of Decision:
2010-12-23 00:00:00
Before:
Balla DCJ
File Number(s):
DC 2010/136007

Judgment

  1. CAMPBELL JA: I agree with Whealy JA.

  1. WHEALY JA: Aleksander Gulic (the appellant) brought proceedings in the District Court against Brian O'Neill (the respondent) claiming damages for injuries he…

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AGLC
Gulic v O'Neill [2011] NSWCA 361
Case
[2011] NSWCA 361
Decision Date

CaseChat Overview and Summary

In *Gulic v O'Neill*, the New South Wales Court of Appeal considered an appeal from a judgment of the primary judge concerning a motor vehicle accident. The respondent had admitted negligence, but the appeal raised questions regarding the primary judge's findings of contributory negligence and the quantum of damages awarded.

The Court of Appeal was required to determine whether the primary judge's finding of contributory negligence was reasonable and whether the apportionment of liability was correct, warranting appellate intervention. Additionally, the court had to consider challenges to the quantum of damages and the primary judge's credit findings.

The Court found that there had been a marked misapplication of the apportionment exercise by the primary judge, justifying appellate intervention. However, the challenges to the quantum of damages and the credit findings were dismissed. Consequently, the appeal was allowed in part, with the original judgment being set aside and a new judgment entered for the appellant in the sum of $259,815.73. The parties were ordered to bear their own costs of the appeal.

Orders

Orders of the court

(1) Leave to extend the time for filing a Notice of Appeal is granted nunc pro tunc;

(2) The appeal is allowed in part;

(3) Judgment entered by the primary judge is set aside and in lieu thereof, judgment is entered in the sum of $259,815.73;

(4) The appeal is otherwise dismissed;

(5) Each party pay his own costs of the appeal.

[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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