Richards v Picco [2000] NSWCA 35

New South Wales Court of Appeal

CITATION : Richards v Picco [2000] NSWCA 35 FILE NUMBER(S) : CA 40378/98 HEARING DATE(S) : 15 February 2000 JUDGMENT DATE : 10 March 2000

PARTIES : Appellant: Jennifer Richards Respondent: Catherine Picco JUDGMENT OF : Mason P at 1; Meagher JA at 2; Heydon JA at 12

LOWER COURT JURISDICTION : District Court LOWER COURT DC 5336/97 FILE NUMBER(S) : LOWER COURT Puckeridge J JUDICIAL OFFICER :

COUNSEL : Appellant: Mr JD Hislop QC, P. O'Conner Respondent: Mr B Murray QC, R Hanrahan SOLICITORS : Appellant: McCulloch & Buggy Respondent: Allen, Allen & Hemsley CATCHWORDS : Motor vehicle accident - Resulting in death - Negligence contrbutory of deceased - assessment of damages LEGISLATION CITED : Suitors' Fund Act CASES CITED: Cocks v Sheppard (1978) 25 ALR 325 DECISION : 1. Appeal allowed.; 2. Verdict and judgment for the respondent set aside; 3. Verdict and judgment for the appellant substituted.; 4. Cross-appeal dismissed.; 5. The respondent pay the costs of the appeal and cross-appeal and the costs in the court below, and to have a certifcate under the Suitors' Fund Act if qualified.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40378/98

MASON P MEAGHER JA HEYDON JA

10 MARCH 20000 JENNIFER RICHARDS v CATHERINE PICCO

MOTOR VEHICLE ACCIDENT-RESULTING IN DEATH-NEGLIGENCE-CONTRIBUTORY NEGLIGENCE OF DECEASED-ASSESSMENT OF DAMAGES

Facts: The respondent's husband was killed in a motor vehicle collision. The accident occurred on a country highway outside Coonabarabran, when the deceased's motorcycle collided with the appellant's utility. Both parties were travelling in the same direction, and when the appellant attempted a right hand turn, the deceased failed to decelerate fast enough to avoid collision. The trial judge found in favour of the respondent. Although contributory negligence was assessed at 35% to the deceased, his Honour held that the appellant failed to appreciate the speed with which the motorcycle was approaching and so did not take the necessary precautions to avoid collision. On appeal there were three issues raised: 1. Whether the appellant was negligent in failing to pay proper attention to the approaching cyclist. 2. Whether the trial judge's assessment of contributory negligence was inadequate. 3. There was a cross-appeal on damages.