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
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
CAMPBELL JA: I agree with Whealy JA.
WHEALY JA: Aleksander Gulic (the appellant) brought proceedings in the District Court against Brian O'Neill (the respondent) claiming damages for injuries he…
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
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.]