Stuart v Walsh [2012] NSWCA 186

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Stuart v Walsh [2012] NSWCA 186 Hearing dates: 15 May 2012 Decision date: 25 June 2012 Before: Bathurst CJ at 1; Basten JA at 2; Tobias AJA at 3 Decision: (a)Appeal allowed. (b)Set aside the verdict, judgment and orders made by North DCJ on 31 March 2011 and in lieu thereof there be a verdict and judgment for the appellants. (c)Set aside the orders for costs made by North DCJ on 17 June 2011 and in lieu thereof the respondent to pay the appellants' costs of the proceedings at first instance. (d)The respondent to pay the appellants' costs of the appeal but to have a certificate under the Suitor's Fund Act 1951, if otherwise 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: NEGLIGENCE - personal injury from traffic accident involving bicycle rider - appeal against the primary judge's orders challenging his finding of negligence and his assessment of contributory negligence.

NEGLIGENCE - duty of care - breach - question of fact - whether the appellant's response to the risk created was unreasonable or indicative of a lack of reasonable care in the circumstances - application of the principle of agony of the moment - only with the benefit of hindsight could criticism be levelled at the appellant's response.