URBAN TRANSIT AUTHORITY OF NEW SOUTH WALES v RUZ-CANALES and ANOR [1995] NSWCA 479

URBAN TRANSIT AUTHORITY OF NEW SOUTH WALES v RUZ-CANALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER, POWELL and COLE JJA

8 February 1995, 10 February 1995

[1995] NSWCA 479

MOTOR VEHICLE — duty of care — contributory negligence — damages

The respondent was involved in a collision between him and a motor vehicle on 1 May 1986 after alighting from a bus owned by the appellant. Proceedings were bought by him to recover damages for injuries suffered as a result of the accident. The appellant challenged dlree aspects of the trial judge's findings; his decision that a duty of care was owned and had been breached, the apporhonment for contributory negligence and the quantum awarded for general damages and past and future economic loss.

On appeal the Court found that a duty of care was owed by the driver of the bus to the respondent and that there had been a breach of that duty. It refused leave to the appellant to argue that as the driver's breach of Reg34(1)(b) of the Passenger Transport Regulations was pursuant to the request of the respondent there was a "joint breach" and the appellant had not breached any duty of care. The appellant further argued that as the driver acted upon the request of the respondent there was no breach of duty. This argument was rejected in accordance with the decision of the trial judge.

In relation to the issue of apportionment for contributory negligence, the Court found that the trial judge's apportionment of one third of responsibility against the respondent was a proper exercise of his discretion.

In respect of the challenge to the amount of damages awarded tot he respondent, the Court found that the amount awarded by the trial judge for general damages was within the range of a proper exercise of discretion and should not be set aside. The Court considered that the discount of 7.5 percent for adverse contingencies on the amount awarded fro past economic loss was appropriate and found no basis to interfere with the amount awarded. The challenge to the award for future economic loss was rejected. The Court found that the deduction of 15 percent for contingencies and the use of a 3 percent discount rate were appropriate.