Serrao (by his Tutor Serrao) v Cornelius (No.2) [2016] NSWCA 231

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Serrao (by his Tutor Serrao) v Cornelius (No.2) [2016] NSWCA 231 Hearing dates: On the papers Decision date: 29 August 2016 Before: Leeming JA at [1]; Sackville AJA at [2]; Emmett AJA at [77] Decision: 1. Allow the appeal on Ground 5 of the Amended Notice of Appeal. 2. Direct the parties to bring an agreed short minutes of order within fourteen days giving effect to this judgment. 3. In the absence of agreement, direct the appellant to file and serve his proposed short minutes of order within fourteen days on any outstanding issues, including any issues as to costs, supported by written submissions not exceeding five pages in length. 4. Direct the respondent to file and serve within a further fourteen days her proposed short minutes of order on any outstanding issues, including any issues as to costs, supported by written submissions not exceeding five pages in length. Catchwords: PRACTICE AND PROCEDURE – whether leave should be given to challenge earlier Court of Appeal decision – party wishing to challenge the decision not reserving her position at trial – whether earlier decision should be reopened. PERSONAL INJURIES – blameless accident – contributory negligence of plaintiff no bar to recovery under Part 1.2 Div 1 of Motor Accidents Act 1999 (NSW) – extent of reduction in damages by reason of contributory negligence – test to apply. Legislation Cited: Civil Liability Act 2002 (NSW), s 3B(2)(a), s 5R, s 5S Civil Procedure Act 2005 (NSW) s 77, s 101 Law Reform (Miscellaneous Provisions) Act 1965 (NSW) s 9(1) Motor Accidents (Compensation) Act 1999 (NSW), s 3, s 7A, s 7B, s 7C, s 7F, s 138