VUKOVIC v PERRYMAN [1997] NSWCA 332

VUKOVIC v PERRYMAN [1997] NSWCA 332

The finding of contributory negligence was not supported by evidence of practicable alternatives; the plaintiff had no reasonable option but to act as he did, so contributory negligence should not reduce his damages. The trial judge's assessment of value of residual earning capacity at $250 per week was a manifest overestimate and should be adjusted to $150 per week based on the plaintiff's age, language, and work history.

Parties
Plaintiff: Peter Vukovic; Defendant: Philip Perryman; Defendant: State Rail Authority of New South Wales
Jurisdiction
Australia
Judgment Date
14 April 1997
Procedural Posture
Cross Appeal / Court of Appeal
Outcome
cross appeal allowed
Legal Topics
Contributory Negligence, Damages, Workplace Safety
Negligence Contributory Negligence Damages Workplace Safety

Case Brief

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Parties

Peter Vukovic

Plaintiff

Philip Perryman

Defendant

State Rail Authority of New South Wales

Defendant

Procedural Posture

Cross Appeal / Court of Appeal

Legal Issues

  1. 1 Whether the plaintiff was contributorily negligent for standing on the load of the dump truck
  2. 2 Appropriate assessment of residual earning capacity and damages

Ratio Decidendi

The finding of contributory negligence was not supported by evidence of practicable alternatives; the plaintiff had no reasonable option but to act as he did, so contributory negligence should not reduce his damages. The trial judge's assessment of value of residual earning capacity at $250 per week was a manifest overestimate and should be adjusted to $150 per week based on the plaintiff's age, language, and work history.

Court Disposition

cross appeal allowed

Orders

  • finding of contributory negligence quashed
  • judgment for the plaintiff for damages undiminished