Cheng v Geussens [2014] NSWCA 113

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Cheng v Geussens [2014] NSWCA 113 Hearing dates: 21 March 2014 Decision date: 08 April 2014 Before: Basten JA at [1]; Barrett JA at [33]; Ward JA at [41] Decision: (1) Grant the applicant leave to appeal. (2) Allow the appeal. (3) Set aside order (b) made in the District Court on 6 February 2013 and in place thereof direct that the plaintiff's damages be reduced by 67% on account of his contributory negligence. (4) The respondent is to pay the costs of the applicant/appellant in this Court. [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: TORT - negligence - contributory negligence - motor vehicle accident - cyclist struck by car - trial judge not satisfied that either party had green light - both parties failed to keep proper lookout - assessment of proportionate responsibility should be made on common factual basis Legislation Cited: Civil Liability Act 2002 (NSW), ss 3B, 5B, 5C, 5R District Court Act 1973 (NSW), s 127 Motor Accidents Compensation Act 1999 (NSW), s 138 Cases Cited: Boyd v Leftwich (1982) 43 ALR 280 Daly v Thiering [2013] HCA 45; 88 ALJR 67 Folpp v Waring (1998) 28 MVR 544 Hercules Textile Mills Pty Ltd v K & H Textile Engineers Pty Ltd [1955] VLR 310 Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 Purcell v Watson (1979) 26 ALR 235 Stove v Hall [2008] ACTCA 21 Turkmani v Visvalingam [2009] NSWCA 211; 53 MVR 176 Wheeler v French (1990) 11 MVR 354 Category: Principal judgment Parties: Yingen Cheng by his tutor Gendi Qian (Applicant) Joachim Geussens (Respondent) Representation: Counsel: P Segal (Applicant) J B Turnbull (Respondent) Solicitors: McInnes Wilson (Respondent) File Number(s): 2013/62444 Decision under appeal Jurisdiction: 9101 Date of Decision: 2014-02-06 00:00:00 Before: Elkaim DCJ File Number(s): 2011/411308