McColl JA at [1], Ward JA at [90], Tobias AJA at [96]
Decision:
Appeal dismissed with costs
[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 - negligent driving - appellant passenger in car driven by respondent - where respondent driving within speed limit in semi-rural area at night - where respondent took eyes off road "momentarily" - where car collided with cow which ran onto road - where no evidence animals likely to stray onto road in area - whether respondent failed to keep proper lookout
PRACTICE - where appellant sought leave to raise argument not pleaded at trial - where appellant eschewed argument on point at trial - whether exceptional circumstances allowing new point to be raised on appeal - whether respondent prejudiced by amendments - whether respondent could have conducted case differently if point raised at trial
MOTOR ACCIDENTS COMPENSATION ACT - Part 1.2 Division 1 - construction of blameless motor accident provisions - whether confined to motor accidents as defined in Motor Accidents Compensation Act
EVIDENCE - where respondent not called to give evidence - where statement of respondent tendered by appellant - where appellant's evidence did not contradict respondent's statement - whether Jones v Dunkel inference available - whether Jones v Dunkel inference would have assisted appellant's case
[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
Mamo v Surace [2014] NSWCA 58
Case
[2014] NSWCA 58
Decision Date
CaseChat Overview and Summary
In *Mamo v Surace*, the appellant, a passenger in a vehicle driven by the respondent, appealed a decision concerning a motor vehicle accident. The collision occurred when the respondent's car struck a cow that had entered the road. The respondent was driving within the speed limit in a semi-rural area at night, having momentarily taken his eyes off the road. There was no evidence suggesting animals were likely to stray onto the road in that location.
The appeal raised several legal issues. Firstly, the court considered whether the respondent had failed to keep a proper lookout. Secondly, it addressed the appellant's attempt to raise a new argument on appeal that had not been pleaded or pursued at trial, and whether exceptional circumstances justified its introduction, considering potential prejudice to the respondent. Thirdly, the court examined the construction of blameless motor accident provisions under the *Motor Accidents Compensation Act*, specifically whether they were confined to accidents as defined by the Act. Finally, the court considered the availability of a *Jones v Dunkel* inference given the respondent did not give evidence, and whether such an inference would have assisted the appellant's case.
The court found that the respondent had not failed to keep a proper lookout, noting that the incident involved a sudden and unpredictable event. Regarding the new argument on appeal, the court determined that exceptional circumstances were not present to allow its introduction, and that the respondent would have been prejudiced. The construction of the blameless accident provisions was also found not to assist the appellant. Furthermore, the court concluded that a *Jones v Dunkel* inference was not available or, if it were, would not have assisted the appellant's case.
The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs
[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.]