Eades v Gunestepe [2012] NSWCA 204

Eades v Gunestepe [2012] NSWCA 204

The trial judge applied the incorrect test under s 109(3)(b) by making a precise assessment of contributory negligence rather than evaluating whether there was a real chance it would be assessed at 24 percent or less. Upon a reconsideration, given the range and uncertainty of the evidence, the respondent discharged her onus, establishing a real chance of contributory negligence being assessed at 24 percent or less. Leave to appeal is granted but the appeal fails.

Parties
Applicant: Noel Samuel James Eades; Respondent: Kadriye Gunestepe
Jurisdiction
Australia
Judgment Date
04 July 2012
Procedural Posture
Civil Appeal / Application for Leave to Appeal and Appeal From District Court Decision
Outcome
Leave to appeal granted; appeal dismissed; applicant to pay respondent's costs.
Legal Topics
Leave to Commence Proceedings Out of Time, Contributory Negligence, Monetary Threshold for Extension of Time, Assessment of Damages Under S 109 MAC Act, Onuses Under S 109 MAC Act
Limitation Law Motor Accident Compensation Civil Procedure Leave to Commence Proceedings Out of Time Contributory Negligence Monetary Threshold for Extension of Time Assessment of Damages Under S 109 MAC Act Onuses Under S 109 MAC Act

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 6 Authorities cited 21 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Noel Samuel James Eades

Applicant

Kadriye Gunestepe

Respondent

Procedural Posture

Civil Appeal / Application for Leave to Appeal and Appeal From District Court Decision

Legal Issues

  1. 1 whether the trial judge erred in assessing contributory negligence under s 109(3)(b) of the Motor Accidents Compensation Act 1999 (NSW)
  2. 2 whether the word 'likely' in s 109(3)(b) means 'more likely than not' or 'real chance'
  3. 3 which party bears the onus under s 109(3)(b)

Ratio Decidendi

The trial judge applied the incorrect test under s 109(3)(b) by making a precise assessment of contributory negligence rather than evaluating whether there was a real chance it would be assessed at 24 percent or less. Upon a reconsideration, given the range and uncertainty of the evidence, the respondent discharged her onus, establishing a real chance of contributory negligence being assessed at 24 percent or less. Leave to appeal is granted but the appeal fails.

Court Disposition

Leave to appeal granted; appeal dismissed; applicant to pay respondent's costs.

Orders

  • Leave to appeal is granted.
  • The appeal is dismissed.