Subject: Fundamentals of the Common Law (LAWS70217)

CASE ANALYSIS: MAMO V SURACE1

I INTRODUCTION

The Court of Appeal of New South Wales’s decision in Mamo v Surace re-evaluates

the scope of the driver's duty of care within common law principle; whether a driver

can be held liable for injuries to their passengers in the case of ‘unavoidable

accident’. The case is also a landmark decision where it also defines the conditions

where a party can raise a distinct legal argument in an appeal.

II FACTS

A The Facts

On the evening of 30 March 2008, Mr. Jesse Mamo, the Appellant, was involved in a

collision between a motor vehicle and a cow which caused him injury while sitting in

the front passenger seat of the vehicle being driven by Steven Surace, the

Respondent.2

The Appellant sued the Respondent before the District Court, pleading that the

Respondent was negligent for looking at his radio or CD player rather than keeping a

proper lookout and in not using his high beam, causing collision with the cow. 3

However, the Primary Judge found that the Respondent did not breach his duty of

care, even if he did, an unexpected circumstance hindered the Respondent’s ability

1
Mamo v Surace (1980) 86 NSWLR 275.
2
Ibid [1].
3
Ibid [10].
to prevent the accident.4 The Appellant’s claims were unsuccessful before the

primary judge and his appeals were dismissed by the Court of appeal. 5 

On appeal to the High Court, the first Appellant's submission remains concentrated

on error of the primary judge’s decision, as well as the construction of blameless

motor accident for the purposes of Motor Accidents Compensation Act 1999 (NSW),

with Axiak v Ingram as the basis of the precedent. 6 However, in the Appellant’s reply

submissions, the Appellant shifted the focus completely to the definition of

BLAMELESS ACCIDENT in s 7 A Motor Accidents Compensation Amendment for

the purposes of s 7B of the Act, which falls within the section 3 definition of 'motor

accident.7 Consequently, the pillar question laid down before the Court of appeal was

whether the party could advance new arguments which had already been submitted

differently at trial. 

B Decision of the Court

1 The Ratio

The Court’s decision ratio is inclusive in two fundamental aspects: First for duty of

care, the law is that a driver would not be breaching the duty of care if the accident is

proven to be an unavoidable one. 8 Second, for submission of a new argument on

appeal, the decision ratio is that allowing a party to advance a new argument on an

appeal would be contrary to the principles and statutory provisions of the

administration of justice, unless in exceptional circumstances. 9

4
Ibid [23]–[24] .
5
Ibid [1]–[2].
6
Ibid [25].
7
Ibid [45].
8
Ibid [61].
9
Ibid [75], [88].
2 Legal Reasoning and Analysis

For duty of care, the Court of Appeal had slightly different reasoning to the court at

trial, although both were on the same side in the appearance of the cow was an

unexpected circumstance that could not be avoided by the Respondent. 10 However,

The Court of Appeal emphasised that whether the Respondent breached the duty of

care depended on whether the accident was unavoidable. 11 In this context, it was the

Appellant's job to provide evidence that as long as the Respondent kept a proper

lookout, the Respondent could see the cow coming, and the accident could have

been avoided.12 Hence, although the court admitted that there was no evidence to

determine the exact timing of the Respondent engaged with the electronic devices in

the vehicle,13 the Appellant’s evidence was consistent with the Respondent’s

evidence that the incident occurred instantaneously. 14 Further, this decision is very

understandable as even the Appellant cannot provide evidence which shows that

with proper look out, the Respondent may avoid sudden arriving cows. 15

Simultaneously, the Court engaged in the assessment of whether or not the

Appellant should be entitled to raise a distinct legal argument in an appeal stage.

The Court starts by setting up the law, clarifying that based on the principle of ‘a

party is bound by the conduct of his or her case,’ an Appellant must be able to

establish exceptional circumstances to submit a new argument where the Appellant

10
Ibid [68].
11
Ibid [62].
12
Ibid.
13
Ibid [63].
14
Ibid [68].
15
Ibid.
failed to set forth during the initial hearing. 16 In this regard, the Court found that the

Appellant is not under a condition of an ‘exceptional circumstances’ where such a

new argument has been presented at trial and the Respondent might also have

conducted the case differently since then. 17

The Court also pointed out that the finality aphorism by Lord Atkin contended by the

Appellant may be seen as a false dichotomy, if the finality was not considered as a

part of justice.18 The Court held that Lord Atkin’s notion is suitable with the

administration of criminal justice where the principle of procedural fairness and

correct outcome are highly valued.19 To that extent, the Court expressed that

although the administration of civil justice upholds the finality, the overriding purpose

of civil proceedings, based on statutory context, is to facilitate the just, efficient, and

cost-effective resolution of the real issues in the dispute. 20

Indeed, both the failure to establish the exceptional circumstances along with the

incompatibility with the procedural principles and statutory provisions in a civil

proceeding are the most important parts of the judge's decision. These reasonings

supported each other to conclude that the Appellant had the opportunity to bring any

argument and be tested with the Respondent during the trial, therefore, there would

be no need to raise the new argument during the appeal. Submitting a new distinct

argument could be considered as an unfair process to the Respondent as the

16
Ibid [73], [74], [75].
17
Ibid [76].
18
Ibid [80].
19
Ibid [81].
20
Ibid [82]; Peter McClellan, ‘Civil Justice Reform - What has it achieved?’ (2010), 5 New South
Wales Judicial Scholarship 7, 38.
Respondent’s case could be conducted differently according to the argument made

by the Appellant.

III CONCLUSION

The New South Wales Court of Appeal’s decisions contains two critical issues; the

duty of care and the submission of a new argument on an appeal. In the first issue

the Court took a path not to decide differently from the decisions of the primary judge

and strengthen the reasoning on evidence-based arguments. Nevertheless, The

Court was very strict with the second issue by supporting its legal reasoning with

statutory provisions and principles of common law.

A Articles

McClellan, Peter, ‘Civil Justice Reform - What has it achieved?’ (2010), 5 New South

Wales Judicial Scholarship 1

B Cases

Mamo v Surace (1980) 86 NSWLR 275

C Statute

Civil Procedure Act 2005 (NSW)