Thomas William Vale v Timothy David Eggins [2006] NSWCA 348

Reported Decision : (2006) Aust Torts Reports 81-869

New South Wales Court of Appeal

CITATION: Thomas William Vale v Timothy David Eggins [2006] NSWCA 348

HEARING DATE(S): 17 October 2006

JUDGMENT DATE: 11 December 2006

JUDGMENT OF: Beazley JA at 1; McColl JA at 31; Bryson JA at 32

DECISION: 1. Appeal allowed; 2. Verdict and judgment and order for costs in favour of the respondent given in the Court below set aside; 3. Verdict and judgment for the appellant in the sum of $925,000 together with interest calculated from the date of trial; 4. Direct the parties to file and serve written submissions on costs by Wednesday 13 December 2006.

CATCHWORDS: NEGLIGENCE – appellant struck by motor vehicle driven by respondent – appellant "stumbling" across roadway – whether respondent negligent in increasing speed on approaching appellant – reasonable steps required to react to danger of appellant's presence on roadway – whether trial judge erred in breaking events down into phases - NEGLIGENCE – Civil Liability Act – construction of s 49 – does not deny duty of care or liability for damages toward intoxicated person – does not lower standard of care owed to intoxicated person – does not incorporate s 50 of Civil Liability Act - CONTRIBUTORY NEGLIGENCE – appellant intoxicated at time of injury – trial judge's finding of 75% contributory negligence upheld

LEGISLATION CITED: Civil Liability Act 2002 (NSW) ss 49, 49(1)(a), 49(1)(b), 49(1)(c), 50 Motor Accidents Compensation Act 1999 (NSW)

Leishman v Thomas (1957) 75 WN NSW 173 CASES CITED: Manley v Alexander (2005) 80 ALJR 413; [2005] HCA 79 Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34