KING v FLAVIANO [1998] NSWCA 122

KING v FLAVIANO [1998] NSWCA 122

The defendant was negligent in failing to keep a proper lookout and take evasive action to avoid hitting the plaintiff. The plaintiff was contributorily negligent, but the trial judge's apportionment understated his contribution, which should be reassessed. Damages awarded for non-economic and economic losses were appropriately within the trial judge's discretion based on evidence.

Parties
Defendant: King; Plaintiff: Flaviano
Jurisdiction
Australia
Judgment Date
17 March 1998
Procedural Posture
Appeal / Decision
Outcome
Appeal allowed in part
Legal Topics
Motor Vehicle Accident, Contributory Negligence, Damages Assessment
Negligence Personal Injury Motor Vehicle Accident Contributory Negligence Damages Assessment

Case Brief

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Parties

King

Defendant

Flaviano

Plaintiff

Procedural Posture

Appeal / Decision

Legal Issues

  1. 1 Was the defendant negligent in causing the motor vehicle accident?
  2. 2 Was the plaintiff contributorily negligent and to what extent?
  3. 3 Appropriate assessment of damages for non-economic and economic loss?

Ratio Decidendi

The defendant was negligent in failing to keep a proper lookout and take evasive action to avoid hitting the plaintiff. The plaintiff was contributorily negligent, but the trial judge's apportionment understated his contribution, which should be reassessed. Damages awarded for non-economic and economic losses were appropriately within the trial judge's discretion based on evidence.

Court Disposition

Appeal allowed in part

Orders

  • Judgment of Gibb ADCJ set aside except as to costs
  • Substituted judgment for the plaintiff for $558,898 with effect from 4 April 1997