Kucera v Lemalu

The appeal in *Kucera v Lemalu* concerned an assessment of contributory negligence made by a District Court judge. The appellant, the driver of a motorcycle, appealed against a finding that the respondent, a pedestrian struck by the motorcycle, was 20% contributorily negligent. The respondent had crossed a street when the pedestrian lights were flashing red and continued to cross after losing a shoe, ultimately being struck by the appellant's motorcycle.

The primary legal issue before the Court of Appeal was whether the trial judge had erred in their assessment of contributory negligence. Specifically, the court considered whether the trial judge had failed to take into account relevant evidence or made a manifest error in their approach, thereby warranting appellate interference with the discretionary judgment. The court also considered whether to grant the appellant leave to rely on an amended notice of appeal, which was necessary to properly advance the challenge to the contributory negligence finding.

The Court of Appeal allowed the appeal, finding that the trial judge's assessment of contributory negligence was not supported by the evidence. The court reasoned that the respondent's actions, including leaving the footpath when the pedestrian lights were flashing red and continuing to cross the road after losing a shoe, did not demonstrate a lack of care for their own safety to the extent that would justify a reduction in damages. The court granted leave to file the amended notice of appeal, concluding that it was necessary for the just resolution of the proceedings.

Consequently, the Court of Appeal set aside the District Court's orders, entered judgment for the plaintiff (the respondent in the appeal) for the full amount of damages, and ordered the defendant (the appellant in the appeal) to pay the plaintiff's costs of the trial. The cross-appeal was dismissed, and the respondent/cross-appellant was ordered to pay the appellant/cross-respondent's costs in the Court of Appeal, excluding costs incurred after the hearing.