Isherwood v Flavin

CITATION:	ISHERWOOD v. FLAVIN [2000] NSWCA 232 revised - 26/04/2007
FILE NUMBER(S):	CA 40318/99
HEARING DATE(S):	28/03/00
JUDGMENT DATE:	1 September 2000
PARTIES :	Peter Isherwood (Appellant/Opponent) Carol Louise Flavin (Respondent/Claimant
JUDGMENT OF:	Mason P at 1; Powell JA at 2; Fitzgerald JA at 45

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 6375/97
LOWER COURT JUDICIAL OFFICER :	Boland A-DCJ

COUNSEL:	P.R. Garling SC (Appellant/Opponent) B.H.K. Donovan QC (Respondent/Claimant)
SOLICITORS:	Hunt & Hunt (Appellant/Opponent) Stern & Tanner (Bondi Junction) (Respondent/Claimant)
CATCHWORDS:	NEGLIGENCE - Road accident case - Plaintiff's vehicle in process of making right-hand turn into another street - Plaintiff's vehicle struck by defendant's vehicle travelling in opposite direction in street from which plaintiff's vehicle turning - Whether defendant negligent - Whether plaintiff guilty of contributory negligence - Apportionment of liability D
DECISION:	Reasons for Judgment delivered. (By Majority); Orders as proposed by Fitzgerald JA (see paras. 51-53)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40318/99
DC 6385/97

MASON P
POWELL JA
FITZGERALD JA

1 September 2000


ISHERWOOD v. FLAVIN

JUDGMENT

1    MASON P: I agree with Fitzgerald JA.

2    POWELL JA: There were listed together an appeal from a Judgment delivered, and verdict found, by Boland A-DCJ in the District Court on 18 December 1998 and an application for leave to cross-appeal out of time in respect of that Judgment and verdict. In the appeal the Appellant, who was the Defendant at first instance, sought, first, to have the verdict against him set aside and in lieu thereof a verdict found in his favour; or, alternatively, to have the apportionment of liability between himself and the Respondent which had been made by Boland A-DCJ following her finding that the Respondent had been guilty of contributory negligence altered in such a way as substantially to reduce the amount of the verdict which had been found in favour of the Respondent. The basis upon which the Respondent sought leave to cross-appeal out of time was that, after Boland A-DCJ had delivered judgment - in which Judgment, rightly regarding herself as bound by the Judgment of this Court in Burnicle v. Cutelli [1], her Honour rejected the claim which had been made by the Respondent - which claim was based on the Judgment of the High Court in Griffiths v. Kerkemeyer[2] - for the cost of providing to the Respondent domestic assistance to care for children - this Court delivered its Judgment in Sullivan v. Gordon [3] in which it held that a person who has lost the capacity to care for a child or children is, in an appropriate case, to be compensated on the same basis as a traditional Griffith v. Kerkemeyer claim.

3    As the Respondent's Notice of Motion had been filed only shortly before the date fixed for the hearing of the appeal; as the appeal books which had been prepared did not contain the materials which were relevant to the cross-appeal if leave to cross-appeal were…