Cusack v Stayt [2000] NSWCA 244

Reported Decision : [2000] 31 MVR 517

New South Wales Court of Appeal

CITATION : Cusack v Stayt [2000] NSWCA 244 FILE NUMBER(S) : CA 40671/99 HEARING DATE(S) : 30/08/00 JUDGMENT DATE : 30 August 2000

PARTIES : Matthew Paul Cusack (Appellant) Sarah May Stayt (Respondent) JUDGMENT OF : Meagher JA at 31, 33; Heydon JA at 1; Foster AJA at 32

LOWER COURT JURISDICTION : District Court LOWER COURT DC 70138/98 FILE NUMBER(S) : LOWER COURT English DCJ JUDICIAL OFFICER :

COUNSEL : R S McIlwaine SC/J Gruzman (Appellant) J D Hislop QC/A Quinlivan (Respondent) SOLICITORS : Orchiston Ranzetta Finney (Appellant) PricewaterhouseCooper Legal Lawyers (Respondent)

LEGISLATION CITED : Motor Accidents Act 1988 Abdallah v Newton (1999) 28 MVR 364 CASES CITED: Gala v Preston (1991) 172 CLR 243 Secretary, Department of Health and Community Services v JWB (1992) 175 CLR 218 DECISION : Appeal dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40671/99 DC 70138/98

MEAGHER JA HEYDON JA FOSTER AJA

30 August 2000

Matthew Paul CUSACK v Sarah May STAYT JUDGMENT

1 HEYDON JA: This is an appeal from a verdict for the defendant, who is the respondent, found by English DCJ. The appellant, the plaintiff, was on the night of 5-6 October 1997 aged twenty-five. His height was about six feet two inches tall and his weight approached ninety-six kilos. The defendant was his then girlfriend. She was twenty-five. She was apparently much shorter than he was (Black T2, 32B). 2 The trial judge made the following findings of primary fact (Red 10R-11B and 11R-12P): "On 6 October 1997, the plaintiff and the defendant were at the Central Coast Leagues Club carpark. Both the plaintiff and the defendant were well and truly intoxicated, the defendant tested positive following a breath analysis. The plaintiff abused and assaulted the defendant. The defendant retaliated. The defendant entered her motor vehicle and attempted to drive the sedan whilst under the influence of alcohol. The plaintiff attempted to dissuade her from such a course of action by maliciously damaging the rear window of the motor vehicle and bashing upon the window of the vehicle. … Accepting as I do the evidence of Mr Maclean I am further satisfied that the defendant drove forward following the breaking of the rear windscreen and attempted to exit the carpark. When she was unable to do so, she reversed the car at high speed. She lost control of the car and collided with a small brick wall. She then drove forward in the direction of the plaintiff and Mr Maclean. The plaintiff stood in the path of [the] motor vehicle waving his arms and yelling at her. There was sufficient time for him to have leapt out of the way, but he failed to avail himself of that opportunity thereby placing himself in a position of great danger. It was only after he had been lightly hit that he stepped back, but then proceeded to taunt the defendant or egg her on by encouraging her to run him over. I am satisfied that the defendant struck the plaintiff twice, on the first occasion lightly, not causing him injury. On the second occasion, she struck him with sufficient speed to throw him on to the bonnet causing him then to fall to the ground and sustain a severe injury to his right shoulder. I am satisfied the acts of the defendant were intentional following upon the verbal abuse, threats, assaults and taunting by the plaintiff. I am satisfied that the defendant had ample opportunity to remove himself from the danger of being struck by the defendant, but chose not to do so and chose deliberately to stand in the path of the oncoming vehicle. "