Gulic v O'Neill [2011] NSWCA 361

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Gulic v O'Neill [2011] NSWCA 361 Hearing dates: 4 October 2011 Decision date: 25 November 2011 Before: Campbell JA at [1] Whealy JA at [2] James J at [82] Decision: (1) Leave to extend the time for filing a Notice of Appeal is granted nunc pro tunc; (2) The appeal is allowed in part; (3) Judgment entered by the primary judge is set aside and in lieu thereof, judgment is entered in the sum of $259,815.73; (4) The appeal is otherwise dismissed; (5) Each party pay his own costs of the appeal. [Note: 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 - motor vehicle accident - respondent admitted negligence -whether primary judge's finding of contributory negligence was reasonable - whether apportionment correct - marked misapplication of apportionment exercise warranting appellate intervention

TORTS - negligence - challenge to quantum of damages found by primary judge -challenge to primary judge's credit findings - award of damages upheld Legislation Cited: Civil Liability Act 2002 s 13 Motor Accidents Compensation Act 1999 s 126 Cases Cited: Container Terminals Australia v Huseyin [2008] NSWCA 320 at [8] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35] Elite Protective Personnel Pty Ltd v Salmon [No 2] [2007] NSWCA 373 at [6] - [11] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Hill v Richards [2011] NSWCA 291 at [23] James v Surf Road Nominees Pty Ltd [No 2] [2005] NSWCA 296 at [31] - [37] Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 at [56] Manly Council v Byrne [2004] NSWCA 123 at [103] - [105] Mason v Demasi [2009] NSWCA 227 at [2] Mastronardi v State of New South Wales [2009] NSWCA 270 at [87] Penrith City Council v Parks [2004] NSWCA 201 Podrebersek v Australian Iron & Steel Ltd (1985) 59 ALR 529 at 532 - 533 Roads & Traffic Authority NSW v Dederer [2007] HCA 42; 234 CLR 330 at 379 per Kirby J Turkmani v Visvalingam & Ors [2009] NSWCA 211; 53 MVR 176 per Beazley JA Category: Principal judgment Parties: Aleksander Gulic (Appellant) Brian Forbes O'Neill (Respondent) Representation: Counsel D E Baran (Appellant) K Rewell SC (Respondent) Solicitors NSW Compensation Lawyers (Appellant) Sparke Helmore Lawyers (Respondent) File Number(s): 2010/387424 Publication restriction: Nil Decision under appeal Date of Decision: 2010-12-23 00:00:00 Before: Balla DCJ File Number(s): DC 2010/136007