Tvedsborg v Vega [2009] NSWCA 57

New South Wales Court of Appeal

CITATION: Tvedsborg v Vega [2009] NSWCA 57

HEARING DATE(S): 13 February 2009

JUDGMENT DATE: 20 March 2009

JUDGMENT OF: Beazley JA at 1; Hodgson JA at 51; Basten JA at 53

1. The appeal by Mr Tvedsborg from the finding of liability against him be dismissed; 2. The appeal by Mr Tvedsborg in respect of the dismissal of his cross-claim against the Nominal Defendant be allowed; 3. Ms Vega's cross-appeal against the Nominal Defendant be allowed; 4. Set aside orders (3) and (4) made by the trial judge in the Court below; 5. Verdict for Ms Vega against the Nominal Defendant; DECISION: 6. Verdict for Mr Tvedsborg against the Nominal Defendant on Mr Tvedsborg's cross-claim. Apportion liability against Mr Tvedsborg and the Nominal Defendant on their respective cross-claims in the proportions 75 per cent and 25 per cent respectively; 7. Mr Tvedsborg and the Nominal Defendant pay Ms Vega's costs to date of the proceedings at first instance. As between themselves, those costs are to be borne by Mr Tvedsborg and the Nominal Defendant in proportion to the their share of liability as assessed by the Court; 8. The Nominal Defendant and Mr Tvedsborg are to bear their own costs of their respective defences and cross-claims in the Court below; 9. Mr Tvedsborg pay Ms Vega's costs of the appeal; 10. The Nominal Defendant pay Mr Tvedsborg's costs of the appeal (not including the costs Mr Tvedsborg has been ordered to pay to Ms Vega); 11. Remit the matter to the District Court for the assessment of damages.

CATCHWORDS: CONTRIBUTION - joint and several tortfeasors - apportionment of liability - TORTS - negligence - injuries to passengers - duty of care owed to pillion passengers - TORTS - negligence - injuries to passengers - duty of care owed by motorcyclists to other motorcyclists - DAMAGES - two defendants - use of same expert