Serrao by his Tutor Serrao v Cornelius [2016] NSWCA 60

Serrao by his Tutor Serrao v Cornelius [2016] NSWCA 60

The finding that the respondent's breach of duty caused the appellant's injuries depended wholly on a finding that the appellant was on the gravel verge immediately before the accident; this finding was not supported by the evidence, meaning the case based on breach of duty failed and the cross-appeal succeeded.

Parties
Appellant/cross Respondent: Daniel Serrao by his tutor Alicia Serrao; Respondent/cross Appellant: Claire Cornelius
Jurisdiction
Australia
Judgment Date
31 March 2016
Procedural Posture
Appeal and Cross Appeal / Decision After Hearing by Court of Appeal on Appeal and Cross Appeal From District Court
Outcome
Cross-appeal allowed. Appeal (grounds 1-4) dismissed. Orders of the District Court set aside. Directions made for further submissions on Ground 5 (blameless accident claim). Costs ordered against appellant for dismissed appeal grounds and cross-appeal.
Legal Topics
Motor Vehicle Accident, Negligence, Contributory Negligence, Blameless Accident, Causation
Personal Injury Torts Motor Vehicle Accident Negligence Contributory Negligence Blameless Accident Causation

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Parties

Daniel Serrao by his tutor Alicia Serrao

Appellant/cross Respondent

Claire Cornelius

Respondent/cross Appellant

Procedural Posture

Appeal and Cross Appeal / Decision After Hearing by Court of Appeal on Appeal and Cross Appeal From District Court

Legal Issues

  1. 1 Whether the respondent was negligent in driving her vehicle off the bitumen onto the gravel verge
  2. 2 Whether the appellant was contributorily negligent and to what degree
  3. 3 Whether the respondent's breach of duty caused the appellant's injuries

Ratio Decidendi

The finding that the respondent's breach of duty caused the appellant's injuries depended wholly on a finding that the appellant was on the gravel verge immediately before the accident; this finding was not supported by the evidence, meaning the case based on breach of duty failed and the cross-appeal succeeded.

Court Disposition

Cross-appeal allowed. Appeal (grounds 1-4) dismissed. Orders of the District Court set aside. Directions made for further submissions on Ground 5 (blameless accident claim). Costs ordered against appellant for dismissed appeal grounds and cross-appeal.

Orders

  • Cross-appeal allowed.
  • Orders made by Hatzistergos DCJ on 13 February 2015 set aside.