Davis v Swift [2014] NSWCA 458

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Davis v Swift [2014] NSWCA 458 Hearing dates: 5 August 2014 Decision date: 22 December 2014 Before: Meagher JA at [1]; Leeming JA at [84]; Adamson J at [85] Decision: 1. Appeal allowed. 2. Set aside the judgment entered, and order as to costs made, by the District Court on 4 June 2013. 3. Judgment for the appellant against the respondent for $37,343, that judgment to take effect on 4 June 2013. 4. If the parties cannot agree as to the orders for costs to be made, they are to file and serve written submissions addressing the costs of the appeal and in the court below, those submissions not to exceed six pages. The appellant's submissions are to be lodged with the Registrar and served by 30 January 2015. The respondent's submissions are to be lodged with the Registrar and served by 13 February 2015. These questions are to be determined on the papers. [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 - whether breach of duty of care - whether contributory negligence - no issue of principle

TORTS - motor accidents - "blameless accident" - where accident or injury not caused by driver or owner's negligence - where contributory negligence - apportionment of responsibility - Motor Accidents Compensation Act 1999 (NSW), ss 7B, 7F, 138