Kucera v Lemalu

[2013] NSWCA 127

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Kucera v Lemalu [2013] NSWCA 127

Hearing dates:

5 April 2013

Decision date:

21 May 2013

Before:

Basten JA at [1];
Preston CJ of LEC at [48];
Simpson J at [49]

Decision:

(1) Allow the appeal and set aside the orders made in the District Court on 7 March 2012.

(2) Grant the appellant leave to file and rely on his amended notice of appeal.

(2) Give judgment for the plaintiff in the District Court in the amount of $515,589.

(3) Order the defendant to pay the plaintiff's costs of the trial.

(4) Dismiss the cross-appeal.

(5) Order the respondent/cross-appellant to pay the appellant/cross-respondent's costs in this Court, other than costs incurred after the hearing.

[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:

APPEAL - civil - discretionary judgment - whether appellate Court should interfere with assessment of contributory negligence - whether manifest error in approach of trial judge - failure to take into account relevant evidence

DAMAGES - torts - negligence - damages reduced by 20% for contributory negligence - whether damages should be further reduced for contributory negligence - respondent crossing street when struck by appellant's motorcycle - whether respondent demonstrated lack of care for own safety - where respondent left footpath when pedestrian lights flashing red - where respondent continued across the road after losing shoe

DAMAGES - torts - negligence - whether damages should have been reduced for contributory negligence - whether respondent's actions mere inadvertence - where respondent failed to take refuge on median strip - where respondent left footpath when pedestrian lights flashing red - where respondent continued across road after losing shoe

PROCEDURE - civil - appeal by way of rehearing - where appropriate finding must depend on objectively verifiable facts - whether to grant leave to rely on amended notice of appeal - whether leave would advance the just resolution of the proceedings - Civil Procedure Act 2005 (NSW), s 56(1) - where challenge to assessment of contributory negligence impliedly challenged finding of fact - where no express challenge to finding of fact

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56

Cases Cited:

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175

Category:

Principal judgment

Parties:

Karel Kucera (Appellant/Cross-Respondent)
Fiapaipai Lemalu (Respondent/Cross-Appellant)

Representation:

Counsel:

K P RewellSC/M A Cleary (Appellant/Cross-Respondent)
S E McCarthy/K A James (Respondent/Cross-Appellant)
Solicitors:

McInnes Wilson Lawyers (Appellant)
Norwest Lawyers (Respondent)

File Number(s):

2012/95149

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2012-03-07 00:00:00

Before:

Hungerford ADCJ

File Number(s):

2010/407500

Judgment

1. BASTEN JA: Ms Lemalu ("the plaintiff") was struck by a motorcycle whilst crossing Elizabeth Street, Sydney, on a pedestrian crossing outside St James Station. She brought proceedings against the driver of the motorcycle, Mr Kucera ("the appellant"), claiming damages in negligence. She obtained a judgment in the District Court, subject to reduction by 20% for contributory negligence.

1. The appellant did not challenge the finding of breach of duty, accepting that he failed to keep a proper lookout, but contended that the plaintiff bore a level of responsibility for her injuries that was not less than 60%.

1. The finding that the plaintiff was contributorily negligent only to the level of 20% cannot be sustained. The evidence indicated that she must have started to cross after the pedestrian lights had started to flash red, had lost, and returned for, a shoe and then continued across almost to the middle of Elizabeth Street, before turning back and being hit by the appellant's motorcycle. For the reasons explained below, the judgment in favour of the plaintiff should have been reduced by 40% for contributory negligence, rather than 20%.

Circumstances of accident

1. The intersection of Elizabeth Street and Market Street is a T-junction. Elizabeth Street runs approximately north-south along the western side of Hyde Park. Market Street runs west from Elizabeth Street.

1. There are pedestrian crossings on both sides of the intersection running east-west across Elizabeth Street. The crossing on the north side of Market Street is immediately outside and just to the north of the entry to St James Station. According to the evidence, there was a significant number of pedestrians using the crossing immediately prior to the accident. To the north of the pedestrian crossing, St James Road, which curves around the northern extremity of the Park, merges with Elizabeth Street. Traffic moving south along Elizabeth Street faces lights at the merger with St James Road, which is 50 metres before the Market Street pedestrian crossing. Depending on the phasing of the traffic lights, the driver of a vehicle stopped at the St James Road-Elizabeth Street junction may not have a view of people on the pedestrian crossing 50 metres ahead because of other vehicles travelling south on Elizabeth Street which may be stopped at the Market Street lights. That, however, was not the case at the time of this accident: the appellant had an unimpeded view from the St James Road lights to the Market Street pedestrian crossing.

1. As often happens when people recount events which occurred immediately prior to a traumatic incident, recollections of times and distances are unreliable. For that reason, the trial judge (Hungerford ADCJ) understandably placed greater reliance upon aspects of the evidence which could be objectively confirmed. Although the appellant complained that the attempt by the trial judge to calculate the speed at which the motorcycle was driven from the St James Road lights to the Market Street lights was an irrelevant distraction, that was not so. Not only was the speed achieved by the motorcycle directly relevant to the cause of the accident, but it was also relevant because it involved an assessment of the time taken for the motorcycle to proceed from St James Road to Market Street and thus allowed findings to be made as to the actions of the plaintiff at relevant times.

1. There was evidence which indicated the periods for which the pedestrian lights were flashing red or unbroken red on the pedestrian crossing, prior to the traffic lights turning green. That evidence, provided by the Roads and Traffic Authority, indicated that the pedestrian lights flashed red for 18 seconds and then showed an unbroken red sign for two seconds before the traffic lights turned green. Thus, a pedestrian who stepped off the footpath outside St James Station at the moment the green light turned to flashing red, had 20 seconds in which to reach the western pavement of Elizabeth Street. In fact, such a pedestrian would have had slightly more than 20 seconds because the vehicles which were stopped at traffic lights on the southern side of Market Street and proceeding north along Elizabeth Street would need to cover approximately 20 metres before they reached the pedestrian crossing on the north side of Market Street. Similarly, traffic (of which the appellant was part) travelling south on Elizabeth Street needed to cover 50 metres before reaching the first pedestrian crossing.

1. The uncontested evidence of the plaintiff was that the traffic started to move along Elizabeth Street before she reached the median strip, which was a raised concrete divider running between Market Street and St James Road along the middle of Elizabeth Street to the north of Market Street. She had thus only just crossed halfway, a distance of approximately nine metres from the St James Station pavement. It is beyond doubt that an able-bodied person moving at a reasonable speed, who had stepped off the pavement whilst the pedestrian light was still green, would comfortably reach the other side of Elizabeth Street within the time provided.

1. The plaintiff, however, did not proceed directly across the road. After she stepped off the pavement and, as the judge found, taken a few steps, she lost a shoe. She was running and appears to have stopped, turned back, collected her shoe and then sought to continue her crossing in a westerly direction to the Market Street side of Elizabeth Street.

1. There was an independent witness to the plaintiff's progress across the road. Ms Elaine Jeffrey had also come into the city by train during the lunch hour, alighted at St James Station and proceeded up to the Elizabeth Street crossing. As she approached the crossing, the pedestrian lights turned from green to red. She stopped when she saw it was "blinking red". Her evidence continued (Tcpt, 18/11/11, p 313(20)):

"Q. What was the next thing that happened?

A. This lady ran past me at a million mile an hour. Yeah it was that quick, believe me.

Q. You made a whooshing sound, if I can --

A. Yeah, it was that quick. I stood and she went bang, straight past me. She lost her shoe, she ran back, she picked up the shoe and kept going."

1. Ms Jeffrey then gave evidence that she reached a point just short of the centre of the road before stopping, turning and taking "a couple of steps" when the motorcycle hit her: p 318(15).

Findings at trial

1. The trial judge found that the plaintiff "was wearing casual clothes, jeans and slip-on shoes with no socks": at [10]. The weather was "sunny and dry". At the time of the accident the plaintiff was 39 years of age: at [8]. Having identified other "non-controversial" facts noted above, the trial judge identified the "disputed issues" at [39] as:

• What was the colour of the pedestrian lights when the plaintiff first stepped onto Elizabeth Street?
• Where on the pedestrian crossing did the plaintiff lose her shoe?
• In which traffic lane and at what speed was the defendant travelling after leaving the St James Road T-junction?
• Where were the plaintiff and the defendant located when the defendant first saw the plaintiff?
• How far across Elizabeth Street towards David Jones did the plaintiff travel?
• Where on Elizabeth Street was the point of impact?

1. Without addressing the questions in precisely the manner in which they had been identified, the trial judge reached the following conclusions at [55]:

• The plaintiff exited St James railway station onto the Elizabeth Street footpath when the pedestrian lights were green.
• She rapidly started to cross Elizabeth Street towards David Jones using the pedestrian crossing.
• As she stepped onto the crossing the pedestrian lights started to flash red; the defendant was then stationary on his motorcycle at the St James Road T-junction at a red light 50 metres away.
• After taking three or four steps the plaintiff lost her shoe.
• She stopped, went back and picked up the shoe before then turning around to continue the crossing by running towards the David Jones side of the road; the defendant while still stationary had a clear line of sight towards Market Street and observed a person, the plaintiff, hurriedly moving to cross the roadway.
• On reaching nearly the middle of the roadway, the plaintiff noticed all other pedestrians had cleared the crossing and the pedestrian lights were flashing red; they then turned solid red.
• At that time, she noticed the vehicle lights for traffic travelling in Elizabeth Street turn from red to green; the defendant, travelling south towards Market Street in the middle lane, proceeded on the green light ahead of motor cars at an accelerated speed as enabled him to change into second gear about 12 metres before the pedestrian crossing.
• The plaintiff started to panic because she noticed cars about to approach from both the north and south along Elizabeth Street.
• The northbound cars were closer to her than those southbound in Elizabeth Street so she decided to run and return and to the closer St James station side of the road.
• Continuing on her way back towards the St James station side, the plaintiff moved about four metres to the centre of the middle south bound lane and then saw the defendant's motorcycle as it was just about to enter the intersection; the defendant at that point saw the plaintiff in front of him on the pedestrian crossing but it was too close to avoid hitting her and he did so.
• The plaintiff, the defendant and the motorcycle came to rest on Elizabeth Street a few metres from the point of impact.

1. Immediately following those findings, the judge concluded at [56]:

"On those events as found, I conclude that the defendant in the circumstances was travelling at an excessive speed and was not keeping a proper lookout for pedestrians as he travelled along Elizabeth Street. Specifically, he failed to heed, and to so act with prudence, the context of a busy pedestrian crossing in the CBD of Sydney, at lunch-time on a working weekday and where pedestrians, as he admitted, were known to act unexpectedly. It is true he had a green light at the time; in my view, however, that was not a licence to proceed unconditionally but only to do so with caution reasonable in the circumstances. I find that the defendant was so negligent in striking the plaintiff with his motorcycle."

1. The judge then turned to the question of contributory negligence. After recounting the submissions of the parties, including submissions as to the failure of the plaintiff to seek safety on the concrete median strip, he noted that he had during the hearing "wondered why the plaintiff did not avail herself of the median strip facility; I still wonder why she did not": at [61]. He concluded she was "wrong" in not using the median strip until she could safely complete the crossing.

1. The dimensions of the median strip were not the subject of any finding, but from the diagrams of the intersection and the photographs, it would appear that the median strip was raised, perhaps 10 centimetres above the carriageway, with bevelled edges and a flat area which may not have been much more than 50 centimetres across. The median strip ended at the northern edge of the pedestrian crossing, which was eight metres wide.

1. The further findings in respect of the plaintiff's negligence were as follows (at [62]):

"In any event, I think it is to be accepted that the plaintiff in effecting the crossing did so by entering upon the intersection very late in the pedestrian light's permitted phase, and in a very hurried fashion, and where prudence suggested on the loss of her shoe, even though truly a misadventure, a return to the St James side footpath to delay the crossing until the next green light."

1. In weighing the respective elements of responsibility, the trial judge found that the shortcomings of the plaintiff were "far outweighed" by the failures of the defendant and, in particular, at [63]:

"He was simply travelling too fast in the circumstances and without proper regard for the conditions so as to fail to see the plaintiff on a pedestrian crossing until it was too late."

Findings on appeal

1. It is convenient to address first the finding of the trial judge that the pedestrian lights turned from green to flashing red at about the time that the plaintiff stepped off the pavement. The plaintiff herself gave evidence that the light was green when she stepped off the pavement: Tcpt, p 36(35). That was also consistent with the evidence of Ms Jeffrey.

1. There were other aspects of the evidence, however, not taken into account in this context, which rendered that finding, and the evidence on which it was based, implausible.

1. First, there was the unequivocal statement of Ms Jeffrey that the plaintiff ran past her at "a million miles an hour". So far as the evidence revealed, the plaintiff had no reason to run, except to "beat the lights". It is at least unlikely that she would have been running if the lights were still green when she stepped off the pavement.

1. Secondly, assuming the lights were green when she stepped off the pavement, but turned to flashing red immediately, she nevertheless had 20 seconds to cross the road before the traffic lights turned green, plus the time it would take the traffic to reach the crossing, which, in respect of the St James Road traffic was about seven seconds (see below). No attempt was made to assess the time which would have been lost by retracing her steps to collect her shoe, but the exercise could not have taken 10 seconds. With a further 10 seconds to go, and as she was still hurrying, it is implausible that she would not have reached the median strip before the traffic started to move.

1. Thirdly, even accepting some hesitation before she turned back, she only reached the middle of the centre lane by the time of the collision with a motorcycle which had covered a distance in excess of 50 metres, whilst she had moved at most five metres back towards the eastern pavement. (The trial judge rejected her evidence that she had reached the eastern most lane when she was hit.)

1. Fourthly, although there may have been real doubt as to the speed at which the motorcycle was travelling at the point of impact, there is substance in the appellant's assertion that the judge overestimated the speed. According to Ms Jeffrey, the appellant put the motorcycle down on its side almost at the point of impact and neither motorcycle nor pedestrian moved far after the impact. His Honour found that they moved "a few metres", but there was no evidence of skid marks. If the motorcycle covered the distance of 50 metres (or possibly 58 metres if the plaintiff had been on the southern side of the crossing) at an average speed of 25 kph, that would have taken about seven (or eight) seconds.

1. Fifthly, the unequivocal evidence of Ms Jeffrey, not challenged in cross-examination, was that, by the time the plaintiff picked up her shoe and turned to "keep running" towards the western side of Elizabeth Street, there was no other pedestrian on the crossing: Tcpt, p 317(5)-(15).

1. Sixthly, the plaintiff gave the following evidence as to the state of the lights after she had collected her shoe (Tcpt, p 136(30)-(50)):

"Q. ... Ms Lemalu, I suggest that at the time that you picked up your shoe and turned to resume crossing Elizabeth Street--

A. WITNESS: Yes.

Q. - that the pedestrian signal had stopped flashing--

A. WITNESS: Yes.

Q. - and was red, solid red?

A. WITNESS: Yes.

Q. You agree with that?

A. WITNESS: Yes.

Q. You see, at the time that you picked up your shoe--

A. WITNESS: Yes.

Q. - I suggest that the safest thing for you to do would have been to get off the road back on to the St James Station side of the road and wait for the next pedestrian lights to come on; that would have been safer, wouldn't it?

A. WITNESS: I think so."

Amendment application

1. The notice of appeal challenged the conclusion with respect to contributory negligence by reference to aspects of the reasoning of the trial judge, but did not challenge the finding of fact that the lights on the pedestrian crossing turned from green to flashing red at about the time the plaintiff stepped off the pavement outside St James Station.

1. Implicit in the challenge to the assessment of contributory negligence, based on the evidence set out above, was a challenge to that finding. The failure to include such a challenge in the notice of appeal caused a difficulty in dealing properly with the appeal by way of a rehearing. If satisfied that there was error on the part of the trial judge, and assuming that the findings of fact were not based on the demeanour of witnesses or other advantages enjoyed by the trial judge over this Court, this Court would, in conducting a rehearing, make its own findings.

1. Against this background, the appellant sought leave to amend his notice of appeal, with entitlements of both parties to file further written submissions, including a right of the respondent to object to any proposed amendment. The amendment sought to add the following ground:

"The Primary Judge erred in making findings of fact that were 'glaringly improbable' (Fox v Percy (2003) 214 CLR 118), namely:

• That the pedestrian lights facing the Respondent did not begin to flash red until the Respondent stepped from the eastern kerb of Elizabeth Street onto the pedestrian crossing; and
• That it took the Respondent 20 seconds to reach the centre of Elizabeth Street, despite his Honour's findings that she was 'moving rapidly' after stepping off the kerb, and then (after picking up her shoe) running;

when the distance from the eastern kerb of Elizabeth Street to the centre of Elizabeth Street at the accident scene is only 9 metres."

1. Although the respondent resisted the amendment, referring to the principles articulated in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175, the resistance was posited on the basis that success on this point would necessitate a retrial. That submission should not be accepted. The basis for interfering with the factual finding challenged by the proposed amendment would depend on the conclusion that the finding was glaringly improbable. Where the appropriate finding must depend substantially on objectively verifiable facts, the issue can be addressed by this Court on an appeal by way of rehearing.

1. The respondent also submitted that the information from the RTA should be treated as implausible or unreliable as a description of the phasing of the lights at the time the accident occurred. No doubt lights do malfunction, but there was no suggestion of any malfunction in the present case. On the contrary, no other pedestrian was caught on the crossing when the traffic started to move.

1. Finally, and somewhat inconsistently with her apparent concern for facilitation of "the just, quick and cheap resolution of the real issues in the dispute" (Civil Procedure Act 2005 (NSW), s 56(1)), the respondent submitted that an assessment of the timing of known events must be supported by expert evidence. This submission sought to elevate a simple arithmetical calculation into an arcane science. The complexity and expense of litigation should not be unnecessarily increased, nor should the ability of judges to carry out simple calculations be denied.

1. To assess the evidence relied upon by the appellant, whilst bound by a glaringly improbable finding of fact which is central to the issue in dispute, is not to advance the just resolution of the case. The argument now presented by the appellant was substantially the same as the argument presented before the trial judge, though not adequately addressed in the judgment. The application for leave to amend should be granted, but the appellant's entitlement to recover the costs of the appeal should be limited to the costs incurred prior to the completion of the hearing on 5 April 2013.

Disposal of the appeal

1. Turning to the merits of the argument set out above, it is convenient to deal first with the respondent's submissions with respect to the last aspect of the evidence, set out at [26] above. The challenge involved two elements. First, it was suggested that the reference to picking up the shoe and turning to resume crossing Elizabeth Street involved some degree of internal inconsistency. That is not so: the questioner appropriately assumed that the actions would constitute one brief, continuous activity. Nor was there inconsistency with her earlier evidence that she was not looking at the lights as she picked up the shoe but that when she turned to run across Elizabeth Street she did look at the lights and the traffic lights were turning green: Tcpt, pp 130(20)-131(10). While there may have been some imprecision as to precisely when she saw the traffic lights turn green, that uncertainty was clarified in the later passage set out above.

1. The respondent further submitted that there was poor translation and limited knowledge of English on the part of the respondent. It is true, as the transcript reveals, that there was a Samoan interpreter, but the transcript also reveals that the respondent answered nearly every question in English. The supposed inadequacies of the interpreter did not give rise, it would appear, to any concern expressed during the hearing, although the respondent herself expressed concern as to the quality of her English for work purposes: Tcpt, p 81(10). Such difficulties as did appear arose in the context of difficulties in describing how she felt about her physical and mental state after the accident: see, eg, Tcpt, pp 82-83 and 86-87.

1. The evidence set out at [26] above is consistent with the objective probabilities and should be accepted. The cumulative effect of the factors set out at [21]-[26] is to make it improbable that the pedestrian lights were green when the plaintiff left the footpath. It is probable that they had been flashing red for at least three or four seconds by the time she started to run across the road, conscious that she needed to hurry.

1. In that circumstance, to describe the loss of the shoe in neutral terms as a "misadventure" (Judgment, p 19) was to diminish the plaintiff's responsibility for what happened next. The "misadventure" occurred because she was hurrying to get across the road on a flashing red light. That in itself constituted an element of lack of care for her own safety. Having lost several further seconds in recovering her shoe, to continue across the road involved a gross disregard for her own safety. If the time taken to recover the shoe has been overestimated, it must follow that the lights had been flashing red for longer before she sought to run across, because she hardly had time to reach the halfway point.

1. The fact that she probably "panicked" at that point is understandable, but it was the consequence of her own irresponsibility. It caused her to fail to take a third step which was necessary if she had been exercising reasonable care, namely to seek the safety of the median strip. The plaintiff gave evidence that she did not know it was there and submitted that as she was on the southern side of the crossing, she would have to cover eight metres to reach it safely. However, it was clearly visible and reaching it have would not have involved crossing any lane of moving traffic.

1. The appellant also attacked the reasoning with respect to his culpability. He asserted that the trial judge incorrectly calculated the speed at which he was travelling at the time of collision. There is something to be said for this complaint, but it does not greatly assist the appellant. The lower his speed, the greater the time he had to see the plaintiff and take steps to avoid hitting her. The trial judge estimated that, at an average speed of 25kph, the appellant would have covered the 50 metres or so from the St James Road lights to the point of impact in 5.7 seconds. The evidence of Ms Jeffrey, which was not challenged, was that at least for as long as it took for the plaintiff to cross from the point where she had recovered her shoe almost to the middle of Elizabeth Street, there was no one else on the crossing. Even if she should not have been there, the appellant should have seen her and taken appropriate steps to avoid her. As the trial judge correctly stated, the fact that he had a green light did not give him a licence to proceed on the assumption that there would be nothing in his path.

1. It may be accepted that it would not be appropriate for this Court to intervene in relation to a discretionary judgment such as the assessment of contributory negligence, unless there were some manifest error in the approach adopted by the trial judge. In the present case, the failure to take account of the factors noted above did constitute an erroneous approach. Further, once all the relevant factors were taken into account, it is clear that the allocation of 20% contributory negligence was outside the range reasonably open in all the circumstances. The appellant's challenge to the assessment of the respective degrees of responsibility for the accident should lead to a fresh apportionment of responsibility for the accident.

Cross-appeal

1. The respondent filed a notice of cross-appeal, challenging the finding of any contributory negligence on her part. She said that her conduct should have been characterised as "mere inadvertence, misjudgement, or actions taken reasonably in the agony of the moment". She also challenged the finding that she should have taken refuge on the concrete median strip, either because the median strip was "in another place" or because she "could not have known of its existence" or because that step would have "increased the danger" to which she was exposed.

1. It is no doubt appropriate to treat her response when trapped in the middle of the road as an action taken in the agony of the moment, with traffic coming towards her from both directions. To the extent that she failed to take refuge on the median strip, little weight could be given that omission, in isolation. The gravamen of her own lack of care arose, however, at two earlier points in time. First, there was her attempt to cross the road in circumstances where the lights were already flashing red and pedestrians were no longer commencing to cross. Secondly, her carelessness in that regard for her own safety was seriously compounded by her attempt to continue her crossing after losing her shoe and returning to collect it. Were it not for the fact that the appellant had a clear view of her from 50 metres away, her contributory negligence might well have been assessed to be in excess of 50%. The cross-appeal was without substance and should be dismissed.

Conclusion

1. The appeal should be allowed and the element of contributory negligence increased to 40%. The total damages were assessed at $895,018.57. (The degree of precision is misleading and the cents at least should be disregarded.) Sixty per cent of that amount is $537,011. From that must be deducted the amount of medical expenses paid by the appellant's insurer, namely $21,422. The resultant judgment in favour of the plaintiff should be $515,589.

Costs

1. In awarding costs, the trial judge took into account an offer of compromise made by the plaintiff on 25 October 2011 in an amount of $550,000. On the basis of the judgment below, the defendant was ordered to pay the plaintiff's costs to be assessed on the ordinary basis up to and including 25 October 2011 and thereafter on an indemnity basis. The judgment now given disentitles the plaintiff to costs on an indemnity basis. There is no evidence of any counteroffer by the appellant. Accordingly the appropriate order as to the costs of the trial is that the defendant pay the plaintiff's costs, to be assessed on the ordinary basis.

1. So far as the costs of the appeal are concerned, the appellant has been successful in increasing the assessment of contributory negligence, though not to the extent sought. The plaintiff has failed in her cross-appeal, seeking to have the element of contributory negligence entirely removed. The appellant should have his costs in this Court.

1. For reasons already noted, however, the appellant's costs should be limited to those incurred up to and including the day of the hearing of the appeal. Although successful in obtaining an amendment to the notice of appeal and succeeding on the new ground, the appellant should not have the costs of those further steps.

Orders

1. Accordingly the Court should make the following orders:

(1) Allow the appeal and set aside the orders made in the District Court on 7 March 2012.

(2) Grant the appellant leave to file and rely on his amended notice of appeal.

(2) Give judgment for the plaintiff in the District Court in the amount of $515,589.

(3) Order the defendant to pay the plaintiff's costs of the trial.

(4) Dismiss the cross-appeal.

(5) Order the respondent/cross-appellant to pay the appellant/cross-respondent's costs in this Court, other than costs incurred after the hearing.

1. PRESTON CJ of LEC: I agree with Basten JA.

1. SIMPSON J: I agree with Basten JA.

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Decision last updated: 21 May 2013