ISHERWOOD v. FLAVIN [2000] NSWCA 232

ISHERWOOD v. FLAVIN [2000] NSWCA 232

By majority, the appellant was not entitled to a verdict in his favour because the trial judge's findings of negligence, including excessive speed and failure to keep a proper lookout, were supported by the evidence. Although the respondent was contributorily negligent, the trial judge's 30% reduction for contributory negligence was reasonably open and disclosed no appellable error; it was permissible to give particular significance to the appellant's speed in causing both inability to avoid collision and severity of injury.

Jurisdiction
Australia
Judgment Date
01 September 2000
Procedural Posture
Negligence Road Accident Appeal / Appeal From District Court Judgment and Verdict; Application for Leave to Cross Appeal Out of Time Adjourned
Outcome
Appeal in relation to liability dismissed by majority; entire appeal to stand dismissed unless the respondent prosecutes and obtains leave on her cross-appeal concerning damages.
Legal Topics
['road Accident Liability' 'contributory Negligence' 'apportionment of Liability' 'right Hand Turn at Intersection' 'proper Lookout' 'excessive Speed' 'appellate Review of Apportionment']
['torts' 'negligence' 'motor Vehicle Accidents' 'appellate Procedure'] ['road Accident Liability' 'contributory Negligence' 'apportionment of Liability' 'right Hand Turn at Intersection' 'proper Lookout' 'excessive Speed' 'appellate Review of Apportionment']

Case Brief

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Procedural Posture

Negligence Road Accident Appeal / Appeal From District Court Judgment and Verdict; Application for Leave to Cross Appeal Out of Time Adjourned

Legal Issues

  1. 1 ['Whether the appellant was negligent in the driving of his vehicle before the collision.' "Whether the respondent was guilty of contributory negligence and, if so, whether the trial judge's apportionment should be altered." 'Whether the appellant should have a verdict entered in his favour instead of the verdict for the respondent.' 'Whether the respondent should be granted leave to cross-appeal out of time in relation to damages for loss of capacity to care for children.']

Ratio Decidendi

By majority, the appellant was not entitled to a verdict in his favour because the trial judge's findings of negligence, including excessive speed and failure to keep a proper lookout, were supported by the evidence. Although the respondent was contributorily negligent, the trial judge's 30% reduction for contributory negligence was reasonably open and disclosed no appellable error; it was permissible to give particular significance to the appellant's speed in causing both inability to avoid collision and severity of injury.

Court Disposition

Appeal in relation to liability dismissed by majority; entire appeal to stand dismissed unless the respondent prosecutes and obtains leave on her cross-appeal concerning damages.

Orders

  • ["The appellant's appeal in relation to liability is dismissed." 'The entire appeal should stand dismissed unless the respondent prosecutes her application for leave to appeal against the amount of damages awarded, obtains leave, and pursues her appeal.' 'The stay of the judgment in favour of the respondent is...