Allen v Robbie - [2015] NSWCA 247

Court of Appeal
Supreme Court

New South Wales

Case Name:	Allen v Robbie
Medium Neutral Citation:	[2015] NSWCA 247
Hearing Date(s):	23 July 2015
Date of Orders:	25 August 2015
Decision Date:	25 August 2015
Before:	McColl JA at 1; Simpson JA at 2; Harrison J at 3.
Decision:	Appeal dismissed with costs
Catchwords:	APPEAL – negligence – motor vehicle accident – plaintiff pedestrian struck by car turning onto roadway – findings – whether trial judge made findings of fact sufficient to support his conclusions – whether trial judge engaged in a rational examination or analysis of the evidence EVIDENCE – expert report– whether expert possessed special or particular knowledge or understanding of the plaintiff’s pre-accident work – where expert offered opinions not based on expertise – whether trial judge erred in rejecting tender of expert report DAMAGES – economic loss – whether plaintiff’s pre-accident earnings were a genuine reflection of her earning capacity
Legislation Cited:	Civil Liability Act 2002 Motor Accidents Compensation Act 1999
Category:	Principal judgment
Parties:	Lisa Victoria Allen (Appellant) Jeanette Robbie (Respondent)
Representation:	Counsel: R R Stitt QC & D Wilson (Appellant) J E Sexton SC & L T Grey (Respondent) Solicitors: Gillis Delaney Lawyers (Appellant) Slater and Gordon Lawyers (Respondent)
File Number(s):	2014/318098
Publication Restriction:	Nil
Decision under appeal:
Court or Tribunal:	District Court
Jurisdiction:	New South Wales
Date of Decision:	10 October 2014
Before:	Williams ADCJ
File Number(s):	2013/54514

[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.]

JUDGMENT

McCOLL JA: I agree with Harrison J’s reasons and the orders his Honour proposes.
SIMPSON JA: I agree with Harrison J.
HARRISON J: Jeanette Robbie was injured on 15 April 2010 when she was struck by a motor vehicle driven by Lisa Allen on the Great Western Highway at Blackheath. Ms Robbie sustained severe injuries. She sued Ms Allen for damages in the District Court of New South Wales. The proceedings were heard by Williams ADCJ who found that the accident had been caused by the negligence of Ms Allen. His Honour gave judgment for Ms Robbie, undiscounted for contributory negligence, and awarded her damages in the sum of $685,580.
Ms Allen appeals from that decision on the following grounds:
(1)His Honour failed to make necessary findings of fact.
(2)His Honour failed to engage in any rational examination or analysis of the evidence including:
(a)the objective evidence;
(b)the lay evidence; and
(c)the expert liability evidence.
(3)His Honour erred in the approach adopted and findings made regarding the following:
(a)whether the appellant was at fault and the application of s 5B of the Civil Liability Act 2002;
(b)contributory negligence and ss 5R and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Allen v Robbie

Details

AGLC: Allen v Robbie [2015] NSWCA 247
Case: [2015] NSWCA 247
Decision Date: 25 August 2015

CaseChat Overview and Summary

The appeal concerned a motor vehicle accident where the plaintiff, a pedestrian, was struck by a car driven by the defendant as it turned onto a roadway. The primary dispute revolved around the findings of fact made by the trial judge and whether those findings adequately supported the conclusions reached. The appeal was heard by McColl and Simpson JJA, and Harrison J.

The court was required to determine whether the trial judge had made sufficient findings of fact to justify his conclusions regarding the negligence of the parties. Additionally, the court considered whether the trial judge had engaged in a rational examination and analysis of the evidence presented. A further issue was whether the trial judge erred in rejecting the tender of an expert report, specifically concerning whether the expert possessed the requisite special or particular knowledge of the plaintiff’s pre-accident work and whether the opinions offered were based on that expertise. Finally, the court had to assess whether the plaintiff’s pre-accident earnings accurately reflected her earning capacity for the purposes of calculating economic loss.

The appellate court found that the trial judge had made sufficient findings of fact to support his conclusions and had rationally examined the evidence. Regarding the expert report, the court held that the expert did not possess the necessary specialised knowledge to offer opinions on the plaintiff’s earning capacity, and therefore the rejection of the report was not an error. The court also determined that the plaintiff’s pre-accident earnings were not a genuine reflection of her earning capacity.

Consequently, the appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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