A young man who suffered severe brain damage when, while intoxicated and walking home from a party he was hit by a car driven by a fellow party goer who was also intoxicated, has had his $2m damages award overturned on appeal.
At approximately 1:40 am on 14 August 2010, Daniel Serrao and a friend, Mr Schneider were walking home from a party along Homestead Road in Orchard Hills. While walking along Homestead Road, Mr Serrao was struck from behind by a Ford laser driven by Claire Cornelius, who had been at the same party. He was struck by front of vehicle and his head collided with windscreen. As a result of accident, Mr Serrao sustained severe head injuries.
Mr Serrao commenced proceedings in the District Court against Ms Cornelius, in negligence and claimed damages. He alleged that Ms Cornelius was negligent in failing to keep a proper lookout, failed to take steps to avoid a collision and drove her vehicle while having a prescribed concentration of alcohol above zero. He also pleaded in alternative, that if no finding of negligence was made, his injuries had been sustained in a blameless motor accident within meaning of s 7A of Motor Accidents Compensation Act 1999 (NSW).
Ms Cornelius denied any negligence and claimed that her vehicle never left the roadway, and gave evidence that first time she saw Mr Serrao was when he was on roadway immediately in front of her vehcle.
His Honour Hatzistergos DCJ found that although Ms Cornelius had a high blood alcohol reading, her intoxication was not causally related to her failure to stop in time and avoid the accident. His Honour found that Ms Cornelius’ vehicle left bitumen roadway and veered towards gravel verge, and found that she was negligent in driving her vehicle off bitumen roadway onto gravel. Such negligence caused vehicle to collide with Mr Serrao, who was walking on gravel verge. His Honour also found that Mr Serrao had been contributorily negligent in that he should not have been walking on gravel verge and in such close proximity to roadway and in same direction as traffic, and that his intoxication affected his vigilance. Damages were assessed in total sum of $2,068,513 but reduced by 40% on account of contributory negligence.
Mr Serrao appealed the primary judge’s findings and argued that primary judge erred in finding contributory negligence. He argued that as he was walking on gravel verge, which was not designated for use by vehicles, fact that he was intoxicated had no causative relationship with accident. He also argued that collision would not have occurred but for Ms Cornelius’ negligence in driving off roadway.
Ms Cornelius cross-appealed the primary judge’s finding that she had breached her duty of care. She argued that primary judge should have found that immediately before accident Mr Serrao was on roadway, not gravel verge, and that mechanism of Mr Serrao hitting front of car supported evidence of Ms Cornelius that when she first saw Mr Serrao he was on roadway directly in front of car.
The court found that it was open to primary judge to accept evidence of tread marks on gravel verge and that those marks were made by Ms Cornelius’ vehicle. However, court ultimately found that primary judge’s finding that Mr Serrao was walking on gravel verge immediately before accident, was not supported by evidence. On that basis, finding that Ms Cornelius’ breach of duty of care in driving on gravel verge caused injuries, could not stand.
Accordingly, the court allowed Ms Cornelius’ cross appeal: Serrao by his tutor Serrao v Cornelius  NSWCA 60.
This article was written by Jackie Waugh, Wolter Kluwer Torts editor and first appeared in the Australian Personal Injury, Health and Medical Law Tracker dated 3 May 2016.