Kucera v Lemalu [2013] NSWCA 127

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Kucera v Lemalu [2013] NSWCA 127 Hearing dates: 5 April 2013 Decision date: 21 May 2013 Before: Basten JA at [1]; Preston CJ of LEC at [48]; Simpson J at [49] Decision: (1) Allow the appeal and set aside the orders made in the District Court on 7 March 2012. (2) Grant the appellant leave to file and rely on his amended notice of appeal. (2) Give judgment for the plaintiff in the District Court in the amount of $515,589. (3) Order the defendant to pay the plaintiff's costs of the trial. (4) Dismiss the cross-appeal. (5) Order the respondent/cross-appellant to pay the appellant/cross-respondent's costs in this Court, other than costs incurred after the hearing. [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: APPEAL - civil - discretionary judgment - whether appellate Court should interfere with assessment of contributory negligence - whether manifest error in approach of trial judge - failure to take into account relevant evidence

DAMAGES - torts - negligence - damages reduced by 20% for contributory negligence - whether damages should be further reduced for contributory negligence - respondent crossing street when struck by appellant's motorcycle - whether respondent demonstrated lack of care for own safety - where respondent left footpath when pedestrian lights flashing red - where respondent continued across the road after losing shoe