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Serrao (by his Tutor Serrao) v Cornelius (No.2)

Serrao (by his Tutor Serrao) v Cornelius (No.2)

Case [2016] NSWCA 231 29 August 2016

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Serrao (by his Tutor Serrao) v Cornelius (No.2) [2016] NSWCA 231
Hearing dates: On the papers
Decision date: 29 August 2016
Before: Leeming JA at [1];
Sackville AJA at [2];
Emmett AJA at [77]
Decision:
1. Allow the appeal on Ground 5 of the Amended Notice of Appeal.
2. Direct the parties to bring an agreed short minutes of order within fourteen days giving effect to this judgment.
3. In the absence of agreement, direct the appellant to file and serve his proposed short minutes of order within fourteen days on any outstanding issues, including any issues as to costs, supported by written submissions not exceeding five pages in length.
4. Direct the respondent to file and serve within a further fourteen days her proposed short minutes of order on any outstanding issues, including any issues as to costs, supported by written submissions not exceeding five pages in length.

Catchwords: PRACTICE AND PROCEDURE – whether leave should be given to challenge earlier Court of Appeal decision – party wishing to challenge the decision not reserving her position at trial – whether earlier decision should be reopened.
PERSONAL INJURIES – blameless accident – contributory negligence of plaintiff no bar to recovery under Part 1.2 Div 1 of Motor Accidents Act 1999 (NSW) – extent of reduction in damages by reason of contributory negligence – test to apply.
Legislation Cited:
Civil Liability Act 2002 (NSW), s 3B(2)(a), s 5R, s 5S
Civil Procedure Act 2005 (NSW) s 77, s 101
Law Reform (Miscellaneous Provisions) Act 1965 (NSW) s 9(1)
Motor Accidents (Compensation) Act 1999 (NSW), s 3, s 7A, s 7B, s 7C, s 7F, s 138
Uniform Civil Procedure Rules 2005 (NSW), r 28.2
Road Rules 2008 NSW, r 238(1), r 238(2)
Road Rules 2014 NSW, r 238(1), r 238(2)
Cases Cited: AAMI Ltd v Hain [2008] NSWCA 46; 50 MVR 58
Axiak v Ingram [2012] NSWCA 311; 82 NSWLR 36
Bromley v Housing Commission of New South Wales (1985) 3 NSWLR 407
Commissioner of Railways v Ruprecht [1979] HCA 37; 142 CLR 563
Davis v Swift [2014] NSWCA 458; 69 MVR 375
Doubleday v Kelly [2005] NSWCA 151
Gett v Tabet [2009] NSWCA 76; 254 ALR 504
Joslyn v Berryman [2003] HCA 34; 214 CLR 552
Melenewycz v Whitfield [2015] NSWSC 1482
Nguyen v Nguyen [1990] HCA 9; 169 CLR 245
Nightingale v Blacktown City Council [2015] NSWCA 423
Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492
Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166
Rankin v Baldi (1985) 1 NSWLR 274
RJE v Secretary of the Department of Justice [2008] VSCA 265
Serrao (by his tutor Serrao) v Cornelius (unrep, 6 February 2015, District Court).
Serrao (by his tutor Serrao) v Cornelius [2016] NSWCA 60
Smith v Zhang [2012] NSWCA 142; 60 MVR 525
Tabet v Gett [2010] HCA 12;

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.

Continue reading Serrao (by his Tutor Serrao) v Cornelius (No.2)

Details

AGLC: Serrao (by his Tutor Serrao) v Cornelius (No.2) [2016] NSWCA 231
Case: [2016] NSWCA 231
Decision Date: 29 August 2016

CaseChat Overview and Summary

The appeal concerned a dispute between the plaintiff, Mr Serrao (represented by his tutor), and the defendant, Ms Cornelius, arising from a motor accident. The Court of Appeal was required to determine whether to grant leave to challenge an earlier decision of the Court of Appeal itself, and if so, whether that earlier decision should be reopened. The case also involved issues of personal injury, specifically concerning a blameless accident and the extent to which damages should be reduced due to the plaintiff's contributory negligence under the *Motor Accidents Act 1999* (NSW).

The primary legal issues before the court were whether the defendant should be permitted to challenge a prior Court of Appeal decision when she had not reserved her position at trial, and the proper application of the principles governing contributory negligence in the context of a blameless accident under the *Motor Accidents Act 1999* (NSW). The court had to consider the circumstances under which an earlier appellate decision could be revisited and the correct test for assessing the reduction in damages for contributory negligence.

The court allowed the appeal on Ground 5 of the Amended Notice of Appeal. This suggests that the court found merit in the appellant's argument concerning the application of the *Motor Accidents Act 1999* (NSW) and the assessment of contributory negligence. The court's reasoning, though not fully detailed in the provided text, led to the conclusion that the appeal should be allowed on this specific ground, necessitating further orders to give effect to the judgment. The court then directed the parties to bring agreed short minutes of order within fourteen days, or in the absence of agreement, to file and serve their respective proposed orders and submissions on outstanding issues, including costs.

Orders

Orders of the court

1. Allow the appeal on Ground 5 of the Amended Notice of Appeal.

2. Direct the parties to bring an agreed short minutes of order within fourteen days giving effect to this judgment.

3. In the absence of agreement, direct the appellant to file and serve his proposed short minutes of order within fourteen days on any outstanding issues, including any issues as to costs, supported by written submissions not exceeding five pages in length.

4. Direct the respondent to file and serve within a further fourteen days her proposed short minutes of order on any outstanding issues, including any issues as to costs, supported by written submissions not exceeding five pages in length.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Serrao (by his Tutor Serrao) v Cornelius (No.2) [2016] NSWCA 231

Most Recent Citation

Howell v QBE [2021] NSWPIC 386

Cases Citing This Decision

Mousawi v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 557
Citation 1 (Para 6)

…In Serrao v Cornelius (No 2) [2016] NSWCA 231 at [51], the Court of Appeal was invited to reconsider the construction of s 7A as identified in Axiak. On the appeal, an argument was advanced by the respondent in relation to section 7A, that in Axiak the Court of Appeal was wrong in its construction of s 7A. Sackvill…
CMB v QBE Insurance (Australia) Limited [2025] NSWPIC 420
Citation 2 (Para 9)

…ard of care he or she is required to observe in the interests of his or her own safety.”[41] [41] Serrao (by his Tutor Serrao) v Cornelius (No.2) [2016] NSWCA 231…
Thomas v QBE Insurance (Australia) Limited [2025] NSWPIC 289
Citation 3 (Para 4)

…ages should be reduced by 100 per cent”. The degree of that claimant’s departure from the standard of care was found to be 50%. [24] (No.2) [2016] NSWCA 231 ( Serrao ).…
Mellor-Langham v QBE Insurance (Australia) Limited [2025] NSWPIC 194
Citation 4 (Para 3)

…tor in the finding of the degree of her contributory negligence. [13] Davis v Swift [2014] NSWCA 458. [14] Serrao (by his tutor Serrao) v Cornelius [2016] NSWCA 231. There were mitigating factors including that the claimant had ordered a taxi which had not turned up and he had “no choice” but to walk.…
McWilliams v Allianz Australia Insurance Limited [2023] NSWPIC 646
Citation 5 (Para 4)

…Reliance was also placed on prior decisions of the court in particular those with similar facts: (a) Serrao (by his tutor) v Cornelius (no2) [2016] NSWCA 231 which involved an intoxicated pedestrian, walking on an unlit road who was hit from behind. In that matter the Court of Appeal criticised the pedestrian for w…
Howell v QBE [2021] NSWPIC 386
Citation 6 (Para 17)

…ance should be made for the claimant’s intoxication relying upon the Court of Appeal decision in Serrao (by his Tutor Serrao) v Cornelius (no. 2) [2016] NSWCA 231…
Manmi v Manmi [2019] NSWDC 96
Citation 7 (Para 182)

…to the plaintiff’s age and physical infirmities at the time of the accident: Smith v Zhang [2012] NSWCA 142 at [21]-[22]; Serrao v Cornelius (No 2) [2016] NSWCA 231 at [61]. The plaintiff had problems with his back and neck at the time and also had weakness in his legs due to his myopathy. Having regard to these ma…
McPherson v Dowell [2018] NSWDC 348
Citation 8 (Para 230)

…'s age and physical infirmities with her left leg at the time of the accident: Smith v Zhang [2012] NSWCA 142 at [21]-[22]; Serrao v Cornelius (No 2) [2016] NSWCA 231 at [61]. See also Allen v Chadwick (2015) 256 CLR 148 at [61].…
Serrao (by his tutor Serrao) v Cornelius [2017] NSWCA 61
Citation 9 (Para 1)

…decision of the District Court: Serrao (by his tutor Serrao) v Cornelius [2016] NSWCA 60; 75 MVR 58, Serrao (by his tutor Serrao) v Cornelius (No 2) [2016] NSWCA 231 and Serrao (by his tutor Serrao) v Cornelius (No 3) [2016] NSWCA 293. It will be convenient to refer to these as the first, second and third judgment…
Serrao (by his tutor Serrao) v Cornelius (No 3) [2016] NSWCA 293
Citation 10 (Para 1)

…2010. 1. Serrao (by his tutor Serrao) v Cornelius [2016] NSWCA 60; 75 MVR 58 (First Appeal Judgment); Serrao (by his tutor Serrao) v Cornelius (No 2) [2016] NSWCA 231 (Second Appeal Judgment).…

See all citing cases →

Cases Cited

Serrao by his Tutor Serrao v Cornelius [2016] NSWCA 60
Citation 1 (Para 4)

…e the orders made by the primary Judge. The effect was that the appellant’s claim in negligence failed. 2. Serrao (by his tutor Serrao) v Cornelius [2016] NSWCA 60 (Principal Judgment).…
Nightingale v Blacktown City Council [2015] NSWCA 423
Citation 2

…34; 214 CLR 552 Melenewycz v Whitfield [2015] NSWSC 1482 Nguyen v Nguyen [1990] HCA 9; 169 CLR 245 Nightingale v Blacktown City Council [2015] NSWCA 423 Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 Rankin v Baldi (1985) 1 NSWLR 274 R…
Melenewycz v Whitfield [2015] NSWSC 1482
Citation 3

…v Kelly [2005] NSWCA 151 Gett v Tabet [2009] NSWCA 76; 254 ALR 504 Joslyn v Berryman [2003] HCA 34; 214 CLR 552 Melenewycz v Whitfield [2015] NSWSC 1482 Nguyen v Nguyen [1990] HCA 9; 169 CLR 245 Nightingale v Blacktown City Council [2015] NSWCA 423 Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 A…
Serrao v Cornelius [2015] NSWDC 4
Citation 4

…ision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: Serrao (by his tutor) v Cornelius [2015] NSWDC 4 Date of Decision: 6 February 2015 Before: Hatzistergos DCJ File Number(s): 2013/215744…
Davis v Swift [2014] NSWCA 458
Citation 5 (Para 21)

…of damages in a blameless accident case where the plaintiff has been contributorily negligent. I refer later in more detail to these authorities. 9. [2014] NSWCA 458; 69 MVR 375 (Meagher JA, Leeming JA agreeing; Adamson J dissenting). 10. [2012] NSWCA 311; 82 NSWLR 36 (Tobias AJA, Beazley JA and Sackville AJA agre…
Town of Port Hedland v Hodder (No 2) [2012] WASCA 212
Citation 6 (Para 61)

…as JA agreeing). 44. Smith v Zhang [2012] NSWCA 142; 60 MVR 525 at [22], [32] (Meagher JA, Tobias AJA agreeing); Town of Port Hedland v Hodder (No.2) [2012] WASCA 212 at [259] (Martin CJ) (addressing Civil Liability Act 2002 (WA), s 5K). 45. [2003] HCA 34; 214 CLR 552 at [37]-[40].…
Axiak v Ingram [2012] NSWCA 311
Citation 7 (Para 21)

…gent. I refer later in more detail to these authorities. 9. [2014] NSWCA 458; 69 MVR 375 (Meagher JA, Leeming JA agreeing; Adamson J dissenting). 10. [2012] NSWCA 311; 82 NSWLR 36 (Tobias AJA, Beazley JA and Sackville AJA agreeing).…
Smith v Zhang [2012] NSWCA 142
Citation 8 (Para 61)

…g CJ in Eq, Hunt AJA agreeing); Waverley Council v Ferreira [2005] NSWCA 418 at [86] (Ipp JA, Spigelman CJ and Tobias JA agreeing). 44. Smith v Zhang [2012] NSWCA 142; 60 MVR 525 at [22], [32] (Meagher JA, Tobias AJA agreeing); Town of Port Hedland v Hodder (No.2) [2012] WASCA 212 at [259] (Martin CJ) (addressing C…
Council of the City of Greater Taree v Wells [2010] NSWCA 147
Citation 9 (Para 59)

…ntributorily negligent is ordinarily to apportion responsibility for the injury and to the damages recoverable by the plaintiff accordingly. [40] 38. [2010] NSWCA 147 at [106]-[107]. 39. CL Act s 5B. 40. Where both the plaintiff and defendant are at fault, the plaintiff’s damages are to be reduced…
Tabet v Gett [2010] HCA 12
Citation 10

…2015, District Court). Serrao (by his tutor Serrao) v Cornelius [2016] NSWCA 60 Smith v Zhang [2012] NSWCA 142; 60 MVR 525 Tabet v Gett [2010] HCA 12; 240 CLR 537 Town of Port Hedland v Hodder (No.2) [2012] WASCA 212 Waverley Council v Ferreira [2005] NSWCA 418 Category: Principal judgment Parties: Daniel Terren…
Gett v Tabet [2009] NSWCA 76
Citation 11

…ilways v Ruprecht [1979] HCA 37; 142 CLR 563 Davis v Swift [2014] NSWCA 458; 69 MVR 375 Doubleday v Kelly [2005] NSWCA 151 Gett v Tabet [2009] NSWCA 76; 254 ALR 504 Joslyn v Berryman [2003] HCA 34; 214 CLR 552 Melenewycz v Whitfield [2015] NSWSC 1482 Nguyen v Nguyen [1990] HCA 9; 169 CLR 245 Nightingale v Blacktow…
RJE v Secretary to the Department of Justice [2008] VSCA 265
Citation 12

…492 Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 Rankin v Baldi (1985) 1 NSWLR 274 RJE v Secretary of the Department of Justice [2008] VSCA 265 Serrao (by his tutor Serrao) v Cornelius (unrep, 6 February 2015, District Court). Serrao (by his tutor Serrao) v Cornelius [2016] NSWCA 60 Smith v Zhang [2012] NS…
AAMI Limited v Hain [2008] NSWCA 46
Citation 13

…e Rules 2005 (NSW), r 28.2 Road Rules 2008 NSW, r 238(1), r 238(2) Road Rules 2014 NSW, r 238(1), r 238(2) Cases Cited: AAMI Ltd v Hain [2008] NSWCA 46; 50 MVR 58 Axiak v Ingram [2012] NSWCA 311; 82 NSWLR 36 Bromley v Housing Commission of New South Wales (1985) 3 NSWLR 407 Commissioner of Railways v Ruprecht [197…
Waverley Council v Ferreira [2005] NSWCA 418
Citation 14 (Para 61)

…and Basten JJA agreeing). 43. Doubleday v Kelly [2005] NSWCA 151 at [26] (Bryson JA, Young CJ in Eq, Hunt AJA agreeing); Waverley Council v Ferreira [2005] NSWCA 418 at [86] (Ipp JA, Spigelman CJ and Tobias JA agreeing). 44. Smith v Zhang [2012] NSWCA 142; 60 MVR 525 at [22], [32] (Meagher JA, Tobias AJA agreeing)…
Doubleday v Kelly [2005] NSWCA 151
Citation 15 (Para 61)

…Joslyn v Berryman . [45] 42. Council of the City of Greater Taree v Wells at [83] (Beazley P, McColl and Basten JJA agreeing). 43. Doubleday v Kelly [2005] NSWCA 151 at [26] (Bryson JA, Young CJ in Eq, Hunt AJA agreeing); Waverley Council v Ferreira [2005] NSWCA 418 at [86] (Ipp JA, Spigelman CJ and Tobias JA agre…
Joslyn v Berryman [2003] HCA 34
Citation 16 (Para 61)

…obias AJA agreeing); Town of Port Hedland v Hodder (No.2) [2012] WASCA 212 at [259] (Martin CJ) (addressing Civil Liability Act 2002 (WA), s 5K). 45. [2003] HCA 34; 214 CLR 552 at [37]-[40].…
Nguyen v Nguyen [1990] HCA 9
Citation 17

…abet [2009] NSWCA 76; 254 ALR 504 Joslyn v Berryman [2003] HCA 34; 214 CLR 552 Melenewycz v Whitfield [2015] NSWSC 1482 Nguyen v Nguyen [1990] HCA 9; 169 CLR 245 Nightingale v Blacktown City Council [2015] NSWCA 423 Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 Proctor v Jetway Avia…
Podbrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34
Citation 18

…Nguyen [1990] HCA 9; 169 CLR 245 Nightingale v Blacktown City Council [2015] NSWCA 423 Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 Rankin v Baldi (1985) 1 NSWLR 274 RJE v Secretary of the Department of Justice [2008] VSCA 265 Se…
Commissioner of Railways v Ruprecht [1979] HCA 37
Citation 19 (Para 60)

…mon law principle that contributory negligence does not involve breach of a duty of care owed to others. [41] 41. Commissioner of Railways v Ruprecht [1979] HCA 37; 142 CLR 563 at 570 (Mason J).…

Legislation Cited

Civil Liability Act 2002 (TAS) 3B(2)(a), 5K)
3 mentions (from Para 16)
Road Rules 2008 (NSW) 238(1), 238(2)(ab)
3 mentions (from Para 62)
Civil Procedure Act 2005 (NSW) 77
2 mentions (from Para 3)
Law Reform (Miscellaneous Provisions) Act 1965 (ACT) 9(1)
2 mentions (from Para 60)
Motor Accidents Compensation Act 1999 (NSW) 3
2 mentions (from Para 5)
Road Rules 2014 (NSW) 238(2)(ab)
2 mentions (from Para 62)
Motor Accidents Act 1999 (NSW)
1 mention
Uniform Civil Procedure Rules 2005 (NSW) 28.2
1 mention

Medium Neutral Citation:	Serrao (by his Tutor Serrao) v Cornelius (No.2) [2016] NSWCA 231
Hearing dates:	On the papers
Decision date:	29 August 2016
Before:	Leeming JA at [1]; Sackville AJA at [2]; Emmett AJA at [77]
Decision:	1. Allow the appeal on Ground 5 of the Amended Notice of Appeal. 2. Direct the parties to bring an agreed short minutes of order within fourteen days giving effect to this judgment. 3. In the absence of agreement, direct the appellant to file and serve his proposed short minutes of order within fourteen days on any outstanding issues, including any issues as to costs, supported by written submissions not exceeding five pages in length. 4. Direct the respondent to file and serve within a further fourteen days her proposed short minutes of order on any outstanding issues, including any issues as to costs, supported by written submissions not exceeding five pages in length.
Catchwords:	PRACTICE AND PROCEDURE – whether leave should be given to challenge earlier Court of Appeal decision – party wishing to challenge the decision not reserving her position at trial – whether earlier decision should be reopened. PERSONAL INJURIES – blameless accident – contributory negligence of plaintiff no bar to recovery under Part 1.2 Div 1 of Motor Accidents Act 1999 (NSW) – extent of reduction in damages by reason of contributory negligence – test to apply.
Legislation Cited:	Civil Liability Act 2002 (NSW), s 3B(2)(a), s 5R, s 5S Civil Procedure Act 2005 (NSW) s 77, s 101 Law Reform (Miscellaneous Provisions) Act 1965 (NSW) s 9(1) Motor Accidents (Compensation) Act 1999 (NSW), s 3, s 7A, s 7B, s 7C, s 7F, s 138 Uniform Civil Procedure Rules 2005 (NSW), r 28.2 Road Rules 2008 NSW, r 238(1), r 238(2) Road Rules 2014 NSW, r 238(1), r 238(2)
Cases Cited:	AAMI Ltd v Hain [2008] NSWCA 46; 50 MVR 58 Axiak v Ingram [2012] NSWCA 311; 82 NSWLR 36 Bromley v Housing Commission of New South Wales (1985) 3 NSWLR 407 Commissioner of Railways v Ruprecht [1979] HCA 37; 142 CLR 563 Davis v Swift [2014] NSWCA 458; 69 MVR 375 Doubleday v Kelly [2005] NSWCA 151 Gett v Tabet [2009] NSWCA 76; 254 ALR 504 Joslyn v Berryman [2003] HCA 34; 214 CLR 552 Melenewycz v Whitfield [2015] NSWSC 1482 Nguyen v Nguyen [1990] HCA 9; 169 CLR 245 Nightingale v Blacktown City Council [2015] NSWCA 423 Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 Rankin v Baldi (1985) 1 NSWLR 274 RJE v Secretary of the Department of Justice [2008] VSCA 265 Serrao (by his tutor Serrao) v Cornelius (unrep, 6 February 2015, District Court). Serrao (by his tutor Serrao) v Cornelius [2016] NSWCA 60 Smith v Zhang [2012] NSWCA 142; 60 MVR 525 Tabet v Gett [2010] HCA 12;