Kucera v Lemalu [2013] NSWCA 127

Kucera v Lemalu [2013] NSWCA 127

The trial judge's assessment of 20% contributory negligence could not stand because the judge failed to take account of evidence making it improbable that the pedestrian lights were still green when the plaintiff stepped off the footpath and showing that the plaintiff hurried across on a flashing red light, lost and retrieved her shoe, continued despite the danger, and failed to seek safety on the median strip. Those matters constituted a serious lack of care for her own safety, although the appellant remained negligent because he had an unimpeded view and should have seen and avoided her. A proper apportionment reduced the damages by 40% for contributory negligence.

Jurisdiction
Australia
Judgment Date
21 May 2013
Procedural Posture
Civil Appeal in Negligence and Damages / Appeal and Cross Appeal From District Court Judgment
Outcome
Appeal allowed; amended notice of appeal permitted; plaintiff's contributory negligence increased to 40%; cross-appeal dismissed; judgment entered for the plaintiff for $515,589; costs orders varied.
Legal Topics
['negligence' 'contributory Negligence' 'pedestrian Crossing Accident' 'appeal by Way of Rehearing' 'amendment of Notice of Appeal' 'costs']
['torts' 'civil Procedure' 'damages'] ['negligence' 'contributory Negligence' 'pedestrian Crossing Accident' 'appeal by Way of Rehearing' 'amendment of Notice of Appeal' 'costs']

Case Brief

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Procedural Posture

Civil Appeal in Negligence and Damages / Appeal and Cross Appeal From District Court Judgment

Legal Issues

  1. 1 ["Whether the trial judge made manifest error in assessing the plaintiff's contributory negligence at 20%." "Whether the plaintiff's damages should be further reduced for contributory negligence arising from crossing after the pedestrian lights were flashing red, continuing after losing a shoe, and failing to use the median strip." 'Whether the appellant should be granted leave to rely on an amended notice of appeal challenging findings of fact.' 'Whether the cross-appeal against any finding of contributory negligence should be allowed.']

Ratio Decidendi

The trial judge's assessment of 20% contributory negligence could not stand because the judge failed to take account of evidence making it improbable that the pedestrian lights were still green when the plaintiff stepped off the footpath and showing that the plaintiff hurried across on a flashing red light, lost and retrieved her shoe, continued despite the danger, and failed to seek safety on the median strip. Those matters constituted a serious lack of care for her own safety, although the appellant remained negligent because he had an unimpeded view and should have seen and avoided her. A proper apportionment reduced the damages by 40% for contributory negligence.

Court Disposition

Appeal allowed; amended notice of appeal permitted; plaintiff's contributory negligence increased to 40%; cross-appeal dismissed; judgment entered for the plaintiff for $515,589; costs orders varied.

Orders

  • ['Allow the appeal and set aside the orders made in the District Court on 7 March 2012.' 'Grant the appellant leave to file and rely on his amended notice of appeal.' 'Give judgment for the plaintiff in the District Court in the amount of $515,589.' "Order the defendant to pay the plaintiff's costs of the trial."...