Serrao by his Tutor Serrao v Cornelius

The appeal concerned a motor vehicle accident where the respondent's vehicle struck the appellant, who was walking in the same direction on a road at night. Both parties were intoxicated. The primary judge found that the respondent, even if sober, would not have had sufficient time to stop. However, the primary judge also found that the respondent had negligently driven partially on the gravel verge, and that the appellant was contributorily negligent to the extent of 40 per cent. The appeal was heard by Leeming JA, Sackville AJA, and Emmett AJA.

The court was required to determine whether the primary judge erred in finding that the appellant was walking on the gravel verge rather than the road surface, and whether the primary judge erred in finding that the respondent breached her duty of care by driving on the gravel shoulder. Furthermore, the court had to consider whether the respondent's negligence caused the appellant's injuries.

The court allowed the cross-appeal, setting aside the orders of the primary judge. It dismissed grounds 1-4 of the amended notice of appeal, directing the appellant to file submissions on ground 5 and costs. The court ordered that the appellant pay the respondent's costs of the appeal relating to grounds 1-4, and that the appellant pay the respondent's costs of the cross-appeal.