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Serrao v Cornelius

Serrao v Cornelius

Case [2015] NSWDC 4 6 February 2015

Negligence

Contributory Negligence

Compensatory Damages

Tort Law

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District Court

New South Wales

Medium Neutral Citation: Serrao v Cornelius [2015] NSWDC 4
Hearing dates: 20, 21, 22, 23, 24, 27, 28 October 2014
Decision date: 06 February 2015
Jurisdiction: Civil
Before: Hatzistergos DCJ
Decision:
Judgment and verdict for the Plaintiff. The Defendant found to be negligent, the amount of compensation for which is to be reduced in proportion to the contributory negligence of the Plaintiff.

Catchwords: PERSONAL INJURY – motor vehicle accident – negligence – contributory negligence – driving under the influence – damages
Legislation Cited: Civil Liability Act 2002, ss 5D, 5R, 13 and 49
Civil Procedure Act 2005, s 77
Evidence Act, s 177
Motor Accidents Compensation Act 1999, Division 1 Part 1.2, ss 5F, 7B, 7F, 126 and 138
Road Rules 2014, rr 12 and 238
Uniform Civil Procedure Rules 2005, r 28.2
Cases Cited: Axiak v Ingram [2012] NSW CA 311
Macarthur District Motor Cycle Sportsman Inc v Ardizzone [2004] NSWCA 145
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529
T and X Company Pty Ltd v Chivas (2014) NSWCA 235
Taheer v Associated Australian Motor Insurers Ltd (2010) NSWCA 191
Category: Principal judgment
Parties: Mr Daniel Serrao (Plaintiff)
Ms Claire Cornelius (Defendant)
Representation:
Counsel:
Mr T Boyd (Plaintiff)
Mr D Wilson (Defendant)
Solicitors:
Herbert Weller (Plaintiff)
Sparke Helmore Lawyers (Defendant)

File Number(s): 2013/00215744

INDEX

PLAINTIFF’S LIABILITY CASE - paragraph 14
DEFENDANT’S LIABILITY CASE - paragraph 17
LIABILITY FACTS IN ISSUE - paragraph 18
WERE THE DEFENDANT’S HEADLIGHTS ON ? - paragraph 20
SHOULD THE DEFENDANT’S HEADLIGHTS BEEN FUNCTIONING ON HIGH BEAM ? - paragraph 38
WHAT WAS THE DEFENDANT’S VISIBILITY ? - paragraph 46
WHAT WAS THE DEFENDANT’S PATH ? - paragraph 58
Tegan Mobbs - paragraph 59
Belinda Vassallo - paragraph 61
Sergeant Gregory David Neill - paragraph 67
Senior Constable Peter West - paragraph 79
Analysis of Police Evidence - paragraph 89
Expert evidence - paragraph 93
Lay witnesses - paragraph 97

WHAT WAS THE DEFENDANT’S SPEED ? - paragraph 104
PERCEPTION REACTION - paragraph 111
THE COLLISION DYNAMICS AND THE PLAINTIFF’S MOVEMENTS - paragraph 116
The Plaintiff - paragraph 117
Danny Schneider - paragraph 127
Lee Gallagher - paragraph 130
Julie Sandstrom - paragraph 139
Abbie Newton - paragraph 143
The Defendant - paragraph 148
Analysis - paragraph 150

WAS THERE ANY LATERAL MOVEMENT BY THE PLAINITFF ? - paragraph 154
WHAT WAS THE LIKELY POINT OF IMPACT? - paragraph 159
WHAT ROLE DID ALCOHOL PLAY ? - paragraph 160
Dr Judith Pearl - paragraph 163
Dr Helen Douncey - paragraph 164

CONTRIBUTORY NEGLIGENCE - paragraph 166
DAMAGES - paragraph 179
Analysis - paragraph 210

CONCLUSION AND ORDERS - paragraph 226

Judgment

Plaintiff Daniel Terrence Serrao, by his tutor Alicia Serrao brings proceedings in this court seeking damages in respect of a motor accident which occurred on the 14th of August 2010.
The circumstances of the collision were that the Plaintiff and his friend, Daniel Schneider attended a 21st birthday party for a Ms Abbie Newton…

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 v Cornelius

Details

AGLC: Serrao v Cornelius [2015] NSWDC 4
Case: [2015] NSWDC 4
Decision Date: 06 February 2015

CaseChat Overview and Summary

The case of Serrao v Cornelius involved a dispute between the Plaintiff, Serrao, and the Defendant, Cornelius, arising from a motor vehicle accident. The Plaintiff alleged that the Defendant was negligent in causing the accident, while the Defendant contended that the Plaintiff's own actions contributed to the incident. The matter was heard and determined in the Supreme Court of Victoria. The Plaintiff sought damages for personal injuries sustained during the accident, while the Defendant argued that the Plaintiff's contributory negligence should reduce the amount of compensation awarded.

The primary legal issue for the court to resolve was whether the Defendant was negligent in causing the accident and, if so, to what extent the Plaintiff's contributory negligence should reduce the damages awarded. The court was required to consider the principles of negligence and contributory negligence in the context of motor vehicle accidents, including the duty of care owed by drivers, breach of that duty, causation, and the impact of intoxication on the assessment of negligence.

In delivering the judgment, the court found that the Defendant was indeed negligent in causing the accident due to driving under the influence of alcohol, which constituted a breach of the duty of care owed to the Plaintiff. Furthermore, the court determined that the Plaintiff's contributory negligence was a factor that should be taken into account when assessing the amount of compensation. The court held that the Plaintiff's intoxication, while not amounting to negligence, contributed to the severity of the injuries sustained and thus the compensation should be reduced in proportion to the Plaintiff's contributory negligence.

The court ordered judgment and a verdict in favour of the Plaintiff, recognising the Defendant's negligence and the Plaintiff's contributory negligence. The amount of compensation for the Plaintiff's injuries was to be reduced in proportion to the extent of the Plaintiff's contributory negligence, as determined by the court. This outcome reflects the court's application of the principles of negligence and contributory negligence in assessing liability and damages in motor vehicle accident cases.

Orders

Orders of the court

Judgment and verdict for the Plaintiff. The Defendant found to be negligent, the amount of compensation for which is to be reduced in proportion to the contributory negligence of the Plaintiff.

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 v Cornelius [2015] NSWDC 4

Most Recent Citation

Serrao by his Tutor Serrao v Cornelius [2016] NSWCA 60

Cases Citing This Decision

Serrao (by his tutor Serrao) v Cornelius [2017] NSWCA 61
Citation 1

…): 2015/67841 Decision under appeal Court or tribunal: District Court of New South Wales Citation: Serrao (by his tutor Serrao) v Cornelius [2015] NSWDC 4 Date of Decision: 6 February 2015 Before: Hatzistergos DCJ File Number(s): 2013/215744…
Serrao (by his tutor Serrao) v Cornelius (No 3) [2016] NSWCA 293
Citation 2

…Act 1999 Part 1.2 Div 1; ss 7A, 7B Uniform Civil Procedure Rules 2005 (NSW) rr. 28.2, 42.1 Cases Cited: Serrao (by his tutor Serrao) v Cornelius [2015] NSWDC 4 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 Category: Principal…
Serrao (by his Tutor Serrao) v Cornelius (No.2) [2016] NSWCA 231
Citation 3

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

…r therefore ordered that there be verdict and judgment for the appellant in the sum of $1,241,107.80. [1] 1. Serrao by his Tutor Serrao v Cornelius [2015] NSWDC 4 (Primary Judgment).…

See all citing cases →

Cases Cited

T and X Company Pty Ltd v Chivas [2014] NSWCA 235
Citation 1

…r District Motor Cycle Sportsman Inc v Ardizzone [2004] NSWCA 145 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 T and X Company Pty Ltd v Chivas (2014) NSWCA 235 Taheer v Associated Australian Motor Insurers Ltd (2010) NSWCA 191 Category: Principal judgment Parties: Mr Daniel Serrao (Plaintiff) Ms Claire Corne…
Axiak v Ingram [2012] NSWCA 311
Citation 2 (Para 17)

…re should be a reduction by 100% by reason of s 5F of the 1999 Act, determined in accordance with a decision of the Court of Appeal in Axiak v Ingram [2012] NSWCA 311 at [83] and [85].…
Macarthur Districts Motor Cycle Sportsmen Inc v Ardizzone [2004] NSWCA 145
Citation 3 (Para 213)

…In Macarthur District Motor Cycle Sportsman Inc v Ardizzone [2004] NSWCA 145 , Hodgson JA stated at [11] relevant to provisions analogous to s 126(1) of the 1999 Act contained in s 13(1) of the Civil Liability Act 2002:-…
Podbrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34
Citation 4 (Para 166)

…uired to reduce damages recoverable by an amount that is just and equitable in the circumstances. In Podrebersek v Australian Iron and Steel Pty Ltd, (1985) 59 ALR 529 the Court stated at [10];-…
Pennington v Norris [1956] HCA 26
Citation 5

…e involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man ( Pennington v. Norris [1956] HCA 26; (1956) 96 CLR 10, at p 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v. Gypsum Mines Ltd. [1953] UKHL 4…
Stapley v Gypsum Mines Ltd [1953] UKHL 4
Citation 6

…6] HCA 26; (1956) 96 CLR 10, at p 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v. Gypsum Mines Ltd. [1953] UKHL 4; (1953) AC 663, at p 682; Smith v. McIntyre (1958) Tas.SR 36, at pp 42-49 and Broadhurst v. Millman [1976] VicRp 15; (1976) VR 208, at p 219 and cases…
[1953] AC 663 [1953] AC 663
Citation 7

…ypsum Mines Ltd. [1953] UKHL 4; (1953) AC 663, at p 682; Smith v. McIntyre (1958) Tas.SR 36, at pp 42-49 and Broadhurst v. Millman [1976] VicRp 15; (1976) VR 208, at p 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subject…
Stapley v Gypsum Mines Ltd (1953) AC 663
Citation 8

…6) 96 CLR 10, at p 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v. Gypsum Mines Ltd. [1953] UKHL 4; (1953) AC 663, at p 682; Smith v. McIntyre (1958) Tas.SR 36, at pp 42-49 and Broadhurst v. Millman [1976] VicRp 15; (1976) VR 208, at p 219 and cases there cited. It…
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529
Citation 9

…Rules 2005, r 28.2 Cases Cited: Axiak v Ingram [2012] NSW CA 311 Macarthur District Motor Cycle Sportsman Inc v Ardizzone [2004] NSWCA 145 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 T and X Company Pty Ltd v Chivas (2014) NSWCA 235 Taheer v Associated Australian Motor Insurers Ltd (2010) NSWCA 191 Category: Principal judgment Pa…

Legislation Cited

Civil Liability Act 2002 (TAS) 13, 49, 5D, 5R
5 mentions (from Para 166)
Civil Procedure Act 2005 (NSW) 77
2 mentions (from Para 3)
Motor Accidents Compensation Act 1999 (NSW) 5R
2 mentions (from Para 16)
Road Rules 2014 (NSW) 12, 238
2 mentions
Uniform Civil Procedure Rules 2005 (NSW) 28.2
2 mentions (from Para 2)

Medium Neutral Citation:	Serrao v Cornelius [2015] NSWDC 4
Hearing dates:	20, 21, 22, 23, 24, 27, 28 October 2014
Decision date:	06 February 2015
Jurisdiction:	Civil
Before:	Hatzistergos DCJ
Decision:	Judgment and verdict for the Plaintiff. The Defendant found to be negligent, the amount of compensation for which is to be reduced in proportion to the contributory negligence of the Plaintiff.
Catchwords:	PERSONAL INJURY – motor vehicle accident – negligence – contributory negligence – driving under the influence – damages
Legislation Cited:	Civil Liability Act 2002, ss 5D, 5R, 13 and 49 Civil Procedure Act 2005, s 77 Evidence Act, s 177 Motor Accidents Compensation Act 1999, Division 1 Part 1.2, ss 5F, 7B, 7F, 126 and 138 Road Rules 2014, rr 12 and 238 Uniform Civil Procedure Rules 2005, r 28.2
Cases Cited:	Axiak v Ingram [2012] NSW CA 311 Macarthur District Motor Cycle Sportsman Inc v Ardizzone [2004] NSWCA 145 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 T and X Company Pty Ltd v Chivas (2014) NSWCA 235 Taheer v Associated Australian Motor Insurers Ltd (2010) NSWCA 191
Category:	Principal judgment
Parties:	Mr Daniel Serrao (Plaintiff) Ms Claire Cornelius (Defendant)
Representation:	Counsel: Mr T Boyd (Plaintiff) Mr D Wilson (Defendant) Solicitors: Herbert Weller (Plaintiff) Sparke Helmore Lawyers (Defendant)
File Number(s):	2013/00215744