Gordon v Truong; Truong v Gordon [2014] NSWCA 97

Gordon v Truong; Truong v Gordon [2014] NSWCA 97

By majority, the plaintiff failed to keep a proper lookout while crossing Regent Street because the appellant's vehicle should have been visible to him for several seconds before impact; if he had kept a proper lookout, he would probably not have proceeded and the accident would have been avoided. Responsibility was apportioned 65% to the appellant and 35% to the plaintiff. By majority on the cross-appeal, the trial judge erred in refusing future domestic assistance because the facts supported an inference that the plaintiff's wife and adult sons would not continue providing gratuitous assistance, so the plaintiff was entitled to domestic assistance at commercial rates. The appeal and...

Jurisdiction
Australia
Judgment Date
04 April 2014
Procedural Posture
Appeal and Cross Appeal in Motor Vehicle Accident Personal Injury Damages Proceedings / Appeal From the District Court Judgment of Phegan ADCJ Dated 7 December 2012
Outcome
Appeal and cross-appeal allowed; District Court judgment and trial costs order set aside; substituted judgment for the plaintiff in the amount of $265,934; no order as to costs in the Court of Appeal subject to leave to seek variation.
Legal Topics
['negligence' 'contributory Negligence' 'motor Vehicle Accident Involving Pedestrian' 'commercial Domestic Assistance' 'gratuitous Attendant Care Services' 'apportionment of Responsibility']
['torts' 'motor Accidents' 'damages' 'civil Procedure'] ['negligence' 'contributory Negligence' 'motor Vehicle Accident Involving Pedestrian' 'commercial Domestic Assistance' 'gratuitous Attendant Care Services' 'apportionment of Responsibility']

Case Brief

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Procedural Posture

Appeal and Cross Appeal in Motor Vehicle Accident Personal Injury Damages Proceedings / Appeal From the District Court Judgment of Phegan ADCJ Dated 7 December 2012

Legal Issues

  1. 1 ['Whether the trial judge erred in failing to find that the plaintiff was contributorily negligent.' 'Whether the trial judge erred in failing to award damages for future commercial domestic assistance.']

Ratio Decidendi

By majority, the plaintiff failed to keep a proper lookout while crossing Regent Street because the appellant's vehicle should have been visible to him for several seconds before impact; if he had kept a proper lookout, he would probably not have proceeded and the accident would have been avoided. Responsibility was apportioned 65% to the appellant and 35% to the plaintiff. By majority on the cross-appeal, the trial judge erred in refusing future domestic assistance because the facts supported an inference that the plaintiff's wife and adult sons would not continue providing gratuitous assistance, so the plaintiff was entitled to domestic assistance at commercial rates. The appeal and...

Court Disposition

Appeal and cross-appeal allowed; District Court judgment and trial costs order set aside; substituted judgment for the plaintiff in the amount of $265,934; no order as to costs in the Court of Appeal subject to leave to seek variation.

Orders

  • ['Allow the appeal and cross-appeal.' 'Set aside the judgment and order as to the costs of the trial, made in the District Court on 7 December 2012.' 'In place of the judgment of the District Court, order that the defendant pay to the plaintiff damages in an amount of $265,934, such judgment to take effect from 7...