Montibeler v Fazio

In *Montibeler v Fazio* [1994] NSWCA 209, the New South Wales Court of Appeal considered a dispute between the appellant, Montibeler, and the respondent, Fazio. The case concerned an appeal against a decision of the District Court, which had found in favour of Fazio.

The primary legal issue before the Court of Appeal was whether the District Court judge had erred in law by failing to make a finding as to whether the respondent had been negligent in the operation of his motor vehicle. This question arose in the context of an action for damages for personal injuries sustained by the appellant in a motor vehicle accident.

The Court of Appeal held that the District Court judge had indeed erred. It was established that a finding of negligence was a necessary prerequisite to awarding damages in a claim based on negligence. The judge's failure to make such a finding meant that the judgment in favour of the respondent was unsustainable. The Court of Appeal allowed the appeal, set aside the judgment of the District Court, and remitted the matter to the District Court for a new trial.