Berryman v Joslyn; Wentworth Shire Council v Joslyn (2) [2004] NSWCA 239

Berryman v Joslyn; Wentworth Shire Council v Joslyn (2) [2004] NSWCA 239

Where a finding of contributory negligence is increased on appeal, the judgment sum is varied accordingly; successful cross-appellant is entitled to costs; orders as to costs should reflect success or failure on specific appeal issues, considering the practical impact of changes to liability apportionment.

Parties
Appellant: Allan Troy Berryman; First Respondent: Sally Inch Joslyn; Second Respondent: Wentworth Shire Council
Jurisdiction
Australia
Judgment Date
16 July 2004
Procedural Posture
Appeal / Judgment on Costs and Orders After Remitter
Outcome
Appeals dismissed, cross-appeal allowed, orders of lower court varied, costs orders made as specified.
Legal Topics
Contributory Negligence, Motor Vehicle Accidents, Costs, Apportionment of Liability
Tort Law Civil Procedure Contributory Negligence Motor Vehicle Accidents Costs Apportionment of Liability

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Parties

Allan Troy Berryman

Appellant

Sally Inch Joslyn

First Respondent

Wentworth Shire Council

Second Respondent

Procedural Posture

Appeal / Judgment on Costs and Orders After Remitter

Legal Issues

  1. 1 Proper apportionment of contributory negligence in motor accident case
  2. 2 Determination of costs after High Court appeal and remitter
  3. 3 Varying orders in light of increased contributory negligence

Ratio Decidendi

Where a finding of contributory negligence is increased on appeal, the judgment sum is varied accordingly; successful cross-appellant is entitled to costs; orders as to costs should reflect success or failure on specific appeal issues, considering the practical impact of changes to liability apportionment.

Court Disposition

Appeals dismissed, cross-appeal allowed, orders of lower court varied, costs orders made as specified.

Orders

  • In CA 40888/99: (a) Appeal dismissed; (b) Appellant to pay respondents' costs; (c) Cross-appeal by first respondent allowed; (d) Orders of Boyd-Boland A-DCJ on 5 November 1999 varied by: (i) substituting $798,034.52 for $1,496,314.77 in respect of appellant's claim against first respondent; (ii) substituting...