Brown v Mawbey [2001] NSWCA 88

New South Wales Court of Appeal

CITATION : Brown v Mawbey [2001] NSWCA 88 FILE NUMBER(S) : CA 40925/99 HEARING DATE(S) : 27 March 2001 JUDGMENT DATE : 10 April 2001

PARTIES : Stephen Brown (Appellant) Stuart Mawbey (Respondent) JUDGMENT OF : Sheller JA at 1; Stein JA at 7; Ipp AJA at 26

LOWER COURT JURISDICTION : District Court LOWER COURT DC 3279/99 FILE NUMBER(S) : LOWER COURT Patten DCJ JUDICIAL OFFICER :

COUNSEL : J Hislop QC (Appellant/Cross-Respondent) R McIlwaine SC (Respondent/Cross-Appellant) SOLICITORS : Turner Whelan (Appellant) Marsdens (Respondent) CATCHWORDS : TORTS - causation - liability - contributory negligence - PROCEDURE - discretion of trial judge - findings of fact open on the evidence - ND Podrebersek v Australian Iron Steel Pty Ltd (1985) 59 ALJR 492 CASES CITED: Mifsud v Campbell (1990) 21 NSWLR 725 McIlvain v The Council of the Shire of Gunnedah (Unreported, NSWCA 2 October 1998) DECISION : Appeal dismissed with costs. Cross-appeal dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40925/99 DC 3279/99

SHELLER JA STEIN JA IPP AJA Tuesday, 10 April 2001 Stephen BROWN v Stuart MAWBEY

Facts:

This appeal arises from a motor bike accident which occurred near Jamberoo on 20 December 1994. The respondent lost control of his motor bike while crossing a small wooden bridge, and the appellant, who was following him, struck the respondent while he was on the roadway. The respondent suffered a serious brachial plexus injury as a result. At first instance the appellant was found liable in damages to the respondent, however the respondent's contributory negligence was assessed at 50% and damages reduced accordingly. The appeal challenged the trial judge's findings of fact. The respondent cross-appealed on contributory negligence.