Gulic v O'Neill [2011] NSWCA 361

Gulic v O'Neill [2011] NSWCA 361

The findings that the appellant was contributorily negligent and that the damages awards were otherwise within range were open to the primary judge, given the appellant's speed, the obscured view caused by the truck, his familiarity with the intersection, and adverse credit findings. However, apportioning 25 per cent responsibility to the appellant failed to give adequate recognition to the respondent's much greater negligence in turning right across three lanes without knowing whether a vehicle was in the kerb-side lane; the proper apportionment was 10 per cent contributory negligence by the appellant and 90 per cent responsibility by the respondent.

Jurisdiction
Australia
Judgment Date
25 November 2011
Procedural Posture
Appeal in Motor Accident Negligence Proceedings Claiming Damages for Personal Injuries / Appeal From District Court Judgment; Application for Extension of Time to File Notice of Appeal
Outcome
Appeal allowed in part; District Court judgment set aside and judgment entered for the appellant in the reduced sum reflecting 10 per cent contributory negligence; appeal otherwise dismissed.
Legal Topics
['contributory Negligence' 'apportionment' 'non Economic Loss' 'economic Loss' 'future Medical Expenses' 'credit Findings' 'extension of Time' 'costs']
['torts' 'negligence' 'motor Accidents' 'damages' 'civil Procedure'] ['contributory Negligence' 'apportionment' 'non Economic Loss' 'economic Loss' 'future Medical Expenses' 'credit Findings' 'extension of Time' 'costs']

Case Brief

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Procedural Posture

Appeal in Motor Accident Negligence Proceedings Claiming Damages for Personal Injuries / Appeal From District Court Judgment; Application for Extension of Time to File Notice of Appeal

Legal Issues

  1. 1 ['Whether leave should be granted nunc pro tunc to extend the time for filing the Notice of Appeal.' 'Whether the primary judge erred in finding that the appellant was guilty of contributory negligence.' "Whether the primary judge's apportionment of contributory negligence at 25 per cent involved appellable error." 'Whether the awards for non-economic loss, economic loss and future medical treatment expenses were erroneous or inadequate.' 'Whether the appellant was denied procedural fairness.']

Ratio Decidendi

The findings that the appellant was contributorily negligent and that the damages awards were otherwise within range were open to the primary judge, given the appellant's speed, the obscured view caused by the truck, his familiarity with the intersection, and adverse credit findings. However, apportioning 25 per cent responsibility to the appellant failed to give adequate recognition to the respondent's much greater negligence in turning right across three lanes without knowing whether a vehicle was in the kerb-side lane; the proper apportionment was 10 per cent contributory negligence by the appellant and 90 per cent responsibility by the respondent.

Court Disposition

Appeal allowed in part; District Court judgment set aside and judgment entered for the appellant in the reduced sum reflecting 10 per cent contributory negligence; appeal otherwise dismissed.

Orders

  • ['Leave to extend the time for filing a Notice of Appeal is granted nunc pro tunc.' 'The appeal is allowed in part.' 'Judgment entered by the primary judge is set aside and in lieu thereof, judgment is entered in the sum of $259,815.73.' 'The appeal is otherwise dismissed.' 'Each party pay his own costs of the...