Smith v Zhang [2012] NSWCA 142

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Smith v Zhang [2012] NSWCA 142 Hearing dates: 23 April 2012 Decision date: 18 May 2012 Before: Macfarlan JA at [1] Meagher JA at [19] Tobias AJA at [35] Decision: (1) Appeal allowed. (2) Set aside the verdict and judgment for the appellant in the sum of $109,900.50. (3) (By majority) Verdict and judgment for the appellant in the sum of $175,840.80, such judgment to take effect from 9 May 2011. (4) The respondent pay the appellant's costs of the appeal. (5) The respondent to have a certificate under the Suitors' Fund Act 1951, if qualified. [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 - contributory negligence - motor vehicle accident - pedestrian struck by car - failure of driver to keep proper lookout - failure of pedestrian to have regard to own safety - apportionment of liability - whether primary judge erred in omitting to consider greater potential of vehicle to cause harm than pedestrian Legislation Cited: Civil Liability Act 2002 Motor Accidents Compensation Act 1999 Cases Cited: Anikin v Sierra [2004] HCA 64; 79 ALJR 452 British Fame (Owners) v McGregor (Owners) [1943] AC 197 Garry Paul Stocks & McDonald Hamilton Co Pty Ltd v Baldwin [1996] NSWCA 1; 24 MVR 416 Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 Nominal Defendant v Meakes [2012] NSWCA 66 Nominal Defendant v Rooskov [2012] NSWCA 43 Pennington v Norris (1956) 96 CLR 10 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 Stocks v Baldwin [1996] NSWCA 1; (1996) 24 MVR 416 Wyong Shire Council v Shirt (1980) 146 CLR 40 Category: Principal judgment Parties: Maria Smith (Appellant) Yong Gen Zhang (Respondent) Representation: Counsel: S Norton SC/P Khandhar (Appellant) K P Rewell SC/J Turnbull (Respondent) Solicitors: L J Sharpe & Co (Appellant) Sparke Helmore (Respondent) File Number(s): CA 2010/99958 Decision under appeal Citation: Maria Smith v Yong Gen Zhang Date of Decision: 2011-05-09 00:00:00 Before: Olsson DCJ File Number(s): DC 2010/99958