Scott v Williamson; Picken v Williamson [2013] NSWCA 124

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Scott v Williamson; Picken v Williamson [2013] NSWCA 124 Hearing dates: 14 February 2013 Decision date: 16 May 2013 Before: Beazley P at [1]; McColl JA at [98]; Barrett JA at [99] Decision: In the appeal of James Picken v Michael John Williamson and Stephen Pastega CA 2012/47273: (1)(a) Appeal allowed as against the first respondent/first defendant Michael John Williamson; (b) Appeal dismissed as against the second respondent Stephen Pastega; (2) Set aside verdict in favour of the first respondent/first defendant Michael John Williamson; (3) Set aside the order for costs in the Court below in favour of the first respondent/ first defendant Michael John Williamson; (4) Judgment for the appellant/plaintiff James Picken against the first respondent/first defendant Michael John Williamson; (5) Remit the claim of the appellant James Picken to the District Court for the determination of damages; (6) Order that the award of damages assessed by the District Court on the remitted hearing on the claim against the first respondent/first defendant Michael John Williamson be reduced by 65 per cent for the contributory negligence of the appellant/plaintiff, James Picken; (7) Order that the first respondent/first defendant Michael John Williamson pay the appellant/ plaintiff James Picken the costs of the proceedings in the court below heard and determined by Puckeridge ADCJ; (8) Order that the first respondent Michael James Williamson pay to the appellant James Picken his costs of the appeal as follows: (a) All costs of the preparation of the appeal as related to the appeal against the first respondent; (b) 50 per cent of the costs of the hearing of the appeal; (9) Order that the appellant James Picken pay to the second respondent Stephen Pastega 80 per cent of his costs of the appeal, such liability for costs to be a joint and concurrent liability with the appellant Rebecca Scott in proceedings CA 2012/47286; (10) Order that the first respondent/first defendant Michael John Williamson pay to the second respondent Stephen Pastega 20 per cent of his costs of the appeal. In the appeal of Rebecca Scott v Michael John Williamson and Stephen Pastega CA 2012/47286: (1)(a) Appeal allowed as against the first respondent/first defendant Michael John Williamson; (b) Appeal dismissed as against the second respondent Stephen Pastega; (2) Set aside verdict in favour of the first respondent/first defendant Michael John Williamson; (3) Set aside the order for costs in the Court below in favour of the first respondent/first defendant Michael John Williamson; (4) Judgment for the appellant/plaintiff Rebecca Scott against the first respondent/first defendant Michael John Williamson; (5) Remit the claim of the appellant Rebecca Scott to the District Court for the determination of damages; (6) Order that the award of damages assessed by the District Court on the remitted hearing on the claim against the first respondent/first defendant Michael John Williamson be reduced by 30 per cent for the contributory negligence of the appellant/plaintiff, Rebecca Scott; (7) Order that the first respondent/first defendant Michael John Williamson pay the appellant/plaintiff Rebecca Scott the costs of the proceedings in the court below heard and determined by Puckeridge ADCJ; (8) Order that the first respondent Michael James Williamson pay to the appellant Rebecca Scott his costs of the appeal as follows: (a) All costs of the preparation of the appeal as related to the appeal against the first respondent; (b) 50 per cent of the costs of the day of the hearing of the appeal; (9) Order that the appellant Rebecca Scott pay to the second respondent Stephen Pastega 80 per cent of his costs of the appeal, such liability for costs to be a joint and concurrent liability with the appellant James Picken in proceedings CA 2012/47273. (10) Order that the first respondent/first defendant Michael John Williamson pay to the second respondent Stephen Pastega 20 per cent of his 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 - road accident cases - liability of drivers of vehicles - failure to keep a proper lookout. TORTS - negligence - road accident cases - vehicle parked in emergency lane - whether dangerous situation created. TORTS - negligence - road accident cases - obvious risk - whether duty to warn - Civil Liability Act 2002, ss 5F-H - no duty to warn of obvious risk. TORTS - non-negligent party - whether duty to warn of danger. TORTS - negligence - contributory negligence - plaintiffs crossing roadway without taking reasonable care for their own safety. TORTS - negligence - apportionment of responsibility and damages - apportionment in particular situations and cases - failure to give adequate reasons for assessment of damages - credit issues - matter remitted to first instance court for assessment. Legislation Cited: Civil Liability Act 2002 Motor Accidents Compensation Act 1999 Cases Cited: DJL v Central Authority [2000] HCA 17; 201 CLR 226 Manley v Alexander [2005] HCA 79; 80 ALJR 413 Pledge v Roads and Traffic Authority [2004] HCA 13; 78 ALJR 572 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALR 529 Texts Cited: Fleming's The Law of Torts, Carolyn Sappideen and Prue Vines (eds) 10th ed (2011) Lawbook Co Category: Principal judgment Parties: Rebecca Scott (Appellant) James Picken (Appellant) Michael John Williamson (First Respondent) Stephen Pastega (Second Respondent) Representation: Counsel: H Marshall SC; C Heazlewood (Appellants) K P Rewell SC (First Respondent) W M Fitzsimmons (Second Respondent) Solicitors: Carneys Lawyers (Appellants) Moray & Agnew (First Respondent) Sparke Helmore Lawyers (Second Respondent) File Number(s): CA 2012/47286; 2012/47273 Decision under appeal Jurisdiction: 9101 Citation: James Picken v Michael John Williamson; Rebecca Scott v Michael John Williamson Date of Decision: 2011-11-16 00:00:00 Before: Puckeridge ADCJ File Number(s): DC 2009/338243; 2009/338589