Managrave v Vrazalica - [1999] NSWCA 242

CITATION: Managrave v Vrazalica [1999] NSWCA 242

FILE NUMBER(S): CA 40115/98

HEARING DATE(S): 19 March 1999

JUDGMENT DATE:
16 July 1999

PARTIES :

George Vincent Managrave v Serifa Vrazalica

JUDGMENT OF: Beazley JA at 1; Stein JA at 2; Giles JA at 55

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : DC 7570/97

LOWER COURT JUDICIAL OFFICER: Delaney DCJ

COUNSEL: P Garling SC/S Torrington (Appellant)
L Morris QC/E Clarke (Respondent)

SOLICITORS: Phillips Fox (Appellant)
Keddies (Respondent)

CATCHWORDS: District Court - MVA - pedestrian hit by vehicle while attempting to cross the road at a busy intersection - negligence - duty of care - standard of care - contributory negligence - quantum of damages - past and future economic loss - past and future domestic care - loss of superannuation

ACTS CITED: Motor Accidents Act 1988 (NSW); s 72

CASES CITED:
Caldwell v Duka, unreported, Court of Appeal, 16 June 1993
March v Stramare (1991) 171 CLR 506
Nominal Defendant v Heath (1998) 27 MVR 302
Pennington v Norris (1956) 96 CLR 10
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
Stocks v Baldwin (1996) 24 MVR 416
Wyong Shire Council v Shirt (1980) 146 CLR 40

DECISION: Appeal dismissed with costs; Cross-Appeal upheld with costs; By consent order the appellant pay the respondent's costs of appeal and the cross-appellant's costs of the cross-appeal on a solicitor client basis; Verdict and judgment for the respondent of $255,216.00 entered by Delaney DCJ be set aside and a new verdict for the respondent in the sum of $342,794.00 substituted.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40115/98
DC 7570/97

BEAZLEY JA

STEIN JA
GILES JA

Friday, 16 July 1999

George Vincent MANAGRAVE v Serifa VRAZALICA

The respondent was injured in a motor vehicle accident on 23 April 1991. She was struck by the appellant’s vehicle while attempting to cross the road at the intersection of George and King Streets, Sydney, during peak hour traffic. She sustained severe injuries and suffers from continuing disabilities as a result of the accident.

Delaney DCJ found the appellant negligent and made an allowance of 20% for the respondent’s contributory negligence. A verdict and judgment was entered in the respondent’s favour in the sum of $255,216.00.

On appeal , it was argued that:

1. His Honour erred in finding the defendant negligent;
2. Alternatively, his Honour erred in making an allowance of only 20% for the
respondent’s contributory negligence.

On cross-appeal , it was argued that

1. His Honour erred in his allowance for past and future economic loss;
2. His Honour erred in respect of failing to allow any damages for loss of superannuation;
3. His Honour erred in respect of his allowance for past and future domestic care.

Held:

On appeal : Delaney DCJ was not in error in finding the appellant guilty of negligence. Similarly, his Honour’s finding on contributory negligence was open on the evidence and should not be disturbed.
On cross-appeal :…

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

Case: [1999] NSWCA 242
Decision Date: 16 July 1999

CaseChat Overview and Summary

Managrave v Vrazalica concerned an appeal and cross-appeal from a decision of the District Court of New South Wales. The dispute arose from a motor vehicle accident where the respondent, a pedestrian, was struck by a vehicle driven by the appellant while attempting to cross the road at a busy intersection. The primary issues before the District Court involved allegations of negligence on the part of both the driver and the pedestrian, the standard of care owed by each party, and the assessment of the quantum of damages, including past and future economic loss, past and future domestic care, and loss of superannuation.

The Court of Appeal was required to determine whether the primary judge erred in finding the appellant negligent and in assessing the apportionment of liability between the parties. Furthermore, the court had to consider whether the quantum of damages awarded by the primary judge was adequate, particularly in relation to the components of economic loss, domestic care, and superannuation. The appeal and cross-appeal thus focused on the application of principles of negligence and the correct assessment of damages in a motor vehicle accident claim.

The Court of Appeal upheld the primary judge's finding of negligence against the appellant but found that the apportionment of liability was incorrect. The court reasoned that the pedestrian's actions, while potentially contributing to the accident, did not warrant the degree of contributory negligence attributed by the primary judge. The court re-evaluated the evidence concerning the standard of care owed by both parties and adjusted the apportionment of blame. In relation to damages, the court found that the primary judge had underestimated certain heads of loss, particularly future economic loss and domestic care. The court applied established principles for assessing these damages, taking into account the respondent's injuries and their impact on his earning capacity and need for assistance.

Consequently, the appeal by the appellant was dismissed, while the cross-appeal by the respondent was upheld. The original verdict and judgment of $255,216.00 were set aside and replaced with a new verdict for the respondent in the sum of $342,794.00. The parties were ordered to pay each other's costs of the appeal and cross-appeal on a solicitor-client basis.

Orders

Orders of the court

Appeal dismissed with costs; Cross-Appeal upheld with costs; By consent order the appellant pay the respondent's costs of appeal and the cross-appellant's costs of the cross-appeal on a solicitor client basis; Verdict and judgment for the respondent of $255,216.00 entered by Delaney DCJ be set aside and a new verdict for the respondent in the sum of $342,794.00 substituted.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Managrave v Vrazalica [1999] NSWCA 242
FILE NUMBER(S):	CA 40115/98
HEARING DATE(S):	19 March 1999
JUDGMENT DATE:	16 July 1999
PARTIES :	George Vincent Managrave v Serifa Vrazalica
JUDGMENT OF:	Beazley JA at 1; Stein JA at 2; Giles JA at 55

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 7570/97
LOWER COURT JUDICIAL OFFICER:	Delaney DCJ

COUNSEL:	P Garling SC/S Torrington (Appellant) L Morris QC/E Clarke (Respondent)
SOLICITORS:	Phillips Fox (Appellant) Keddies (Respondent)
CATCHWORDS:	District Court - MVA - pedestrian hit by vehicle while attempting to cross the road at a busy intersection - negligence - duty of care - standard of care - contributory negligence - quantum of damages - past and future economic loss - past and future domestic care - loss of superannuation
ACTS CITED:	Motor Accidents Act 1988 (NSW); s 72
CASES CITED:	Caldwell v Duka, unreported, Court of Appeal, 16 June 1993 March v Stramare (1991) 171 CLR 506 Nominal Defendant v Heath (1998) 27 MVR 302 Pennington v Norris (1956) 96 CLR 10 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 Stocks v Baldwin (1996) 24 MVR 416 Wyong Shire Council v Shirt (1980) 146 CLR 40
DECISION:	Appeal dismissed with costs; Cross-Appeal upheld with costs; By consent order the appellant pay the respondent's costs of appeal and the cross-appellant's costs of the cross-appeal on a solicitor client basis; Verdict and judgment for the respondent of $255,216.00 entered by Delaney DCJ be set aside and a new verdict for the respondent in the sum of $342,794.00 substituted.