Zanner v Zanner [2010] NSWCA 343

New South Wales Court of Appeal

CITATION: Zanner v Zanner [2010] NSWCA 343

HEARING DATE(S): 25 October 2010

JUDGMENT DATE: 15 December 2010

JUDGMENT OF: Allsop P at 1; Tobias JA at 14; Young JA at 108

(a) Appeal allowed in part. DECISION: (b) Set aside the verdict and judgment of the District Court of 27 November 2009 in favour of the respondent against the appellants in the sum of $350,000 and substitute therefor a verdict and judgment for the respondent against the appellants in the sum of $140,000. (c) The appellants to pay 80% of the respondent's costs of the appeal but to have a certificate under the Suitor's Fund Act 1951 if otherwise qualified. [The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

CATCHWORDS: TORTS – negligence – breach of duty – motor vehicle accident – whether scope or content of duty so limited that no breach – first appellant owed respondent duty of care limited to manoeuvring vehicle into carport for three or four metres – first appellant was negligent in failing to keep his foot on brake and prevent it slipping onto accelerator - TORTS – negligence – causation – motor vehicle accident – "factual causation" test imposed by s 5D(1)(a) CLA satisfied – whether "scope of liability" test for causation imposed by s 5D(1)(b) CLA satisfied – no reason why responsibility for harm to respondent should not be imposed upon first appellant - TORTS – negligence – contributory negligence – motor vehicle accident – whether just and equitable to reduce respondent's damages by 100% pursuant to s 5S CLA – whether apportionment of 50/50 was manifestly inadequate – culpability and causal potency not equal - TORTS – negligence – duty of care – motor vehicle accident – driver of motor vehicle of any age owes duty of care to someone in position of respondent