Serrao by his Tutor Serrao v Cornelius [2016] NSWCA 60

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Serrao by his Tutor Serrao v Cornelius [2016] NSWCA 60 Hearing dates: 10 March 2016 Decision date: 31 March 2016 Before: Leeming JA at [1]; Sackville AJA at [2]; Emmett AJA at [97] Decision: 1. Cross-appeal allowed. 2. Set aside the orders made by Hatzistergos DCJ on 13 February 2015. 3. Dismiss grounds 1-4 of the amended notice of appeal filed in Court on 10 March 2016. 4. Direct that the Appellants file and serve written submissions within 14 days in support of Ground 5 of the amended notice of appeal and addressing any issues as to costs. 5. Direct that the Respondents file and serve written submissions in reply, including any submissions as to costs, within a further 14 days. 6. The appellant pay the respondent's costs of the appeal insofar as they relate to Grounds 1-4 of the amended notice of appeal. 7. The appellant (cross-respondent) pay the respondent's (cross-appellant's) costs of the cross-appeal. Catchwords: PERSONAL INJURY – motor vehicle accident – vehicle driven by the respondent late at night struck the appellant who is walking in the same direction along a road in complete darkness – both respondent and appellant were intoxicated – primary Judge finds that the respondent, even if sober, had insufficient time to stop – the primary Judge also finds that the respondent negligently drove the vehicle partially along the gravel verge but that the appellant was contributorily negligent as to 40 per cent – whether the primary Judge erred in finding that the appellant was walking on the gravel verge of the unlit road and not on the road surface – whether the primary Judge erred in finding that the respondent breached her duty of care in driving on the gravel shoulder – whether the respondent's negligence caused the appellant's injuries. Legislation Cited: Civil Liability Act 2002 (NSW), ss 3B(2)(a), 5B, 5D, 5E Motor Accidents Compensation Act 1999 (NSW), ss 7A, 7B Road Transport Legislation (Repeal and Amendment) Act 2013 (NSW), sch 1 Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 9 Cases Cited: Laresu Pty Ltd v Clark [2010] NSWCA 180 Serrao by his Tutor Serrao v Cornelius [2015] NSWDC 4 Woolworths Ltd v Ryder [2014] NSWCA 223, 87 NSWLR 593 Category: Principal judgment Parties: Daniel Serrao by his tutor Alicia Serrao (Appellant/Cross-Respondent) Claire Cornelius (Respondent/Cross-Appellant) Representation: Counsel: Mr G Laughton SC / Mr T Boyd (Appellant/Cross-Respondent) Mr P Deakin QC / Mr D Wilson SC (Respondent/Cross-Appellant)