Allen v Taylor

[1999] NSWCA 377

CITATION:	Allen v Taylor [1999] NSWCA 377
FILE NUMBER(S):	CA 40081/98
HEARING DATE(S):	Heard on the papers
JUDGMENT DATE:	15 October 1999
PARTIES :	Shane Roderick Frederick Allen v Joyce Mary Taylor
JUDGMENT OF:	Mason P; Meagher JA; Sheppard AJA

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 86/97 (Wagga Wagga)
LOWER COURT JUDICIAL OFFICER:	Mahoney DCJ

COUNSEL:	Motion heard on the papers No appearances
SOLICITORS:	A: Walsh & Blaire R: Curwood & Partners
CATCHWORDS:	Motion seeking variation of earlier court orders to include issue of contributory negligence as well as damages - Contributory negligence not previously raised in appeal proceedings - Supreme Court Rules Part 40 r9, Part 51 r22 - Whether the respondent ought to be placed in the position in which she would have been if the trial judge had found negligence against her.
ACTS CITED:	Supreme Court Rules
CASES CITED:	Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300
DECISION:	Motion granted

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40081/98
DC 86/97

MASON P
MEAGHER JA
SHEPPARD AJA

Friday, 15 October 1999

Shane Rodney Frederick ALLEN v Joyce Mary TAYLOR

JUDGMENT

1 THE COURT: Judgment in this matter was delivered on 13 May 1999. By majority (Meagher JA and Sheppard AJA; Mason P dissenting) the appeal was allowed, the verdict entered for the respondent, who was the defendant in the proceedings below, was set aside, and in lieu thereof an order was made for a new trial limited to damages. On 19 June 1999 the solicitors for the unsuccessful respondent filed a notice of motion seeking a variation of the orders made on 13 May 1999 by extending the order for a new trial to include an order for a new trial on the issue of contributory negligence as well as on the issue of damages. The motion is opposed. Written submissions have been received from counsel for the parties. The motion has not been the subject of an oral hearing. 2 The facts of the matter are in short compass and are set out in the judgment of Mason P. The appellant (referred to as the opponent in the motion) was injured while driving a 4-wheeled motor cycle across a paddock in a property belonging to his grandmother who was the respondent to the appeal. She is the claimant in the notice of motion. We will continue to refer to the parties as the appellant or the respondent as the case may be. The respondent had asked the appellant to go across to a paddock visible in the distance to look at some heifers that she thought were ready to go to the bull. It was daylight. She invited him to "take the bike", which he had ridden before. 3 The appellant drove straight across the paddock. He noticed that the ground cover was very tall and he realised that he had to be careful. The paddock was covered with rye grass up to about thigh level for a person of average height. The appellant was travelling at a speed which he estimated as between 12 and 15 kilometres per hour. The bike dipped into a hole or gully and, as this happened, the appellant's legs slipped forward off the peg and between the wheels of the bike. The appellant said that he was looking ahead when the accident occurred and that he did not see the hole due to the long grass. 4 What was initially described as a hole was identified as an indentation or gully by reference to a photo taken after the grass had been cleared. Upstream of the place where the accident occurred the gully was more visible due to erosion. At the relevant point the terrain was generally flat. The gully was grassed at the point of impact and the ground surface was not broken. It was a gully rather than a hole about one foot deep at the point of the accident, the same as the diameter of the bike wheels. 5 The questions considered by the Court in its judgment of 13 May 1999 were what was the extent of the duty owed by the respondent to the appellant and whether the respondent was in breach of that duty. Meagher JA and Sheppard AJA thought that there was a duty of care and that breach of it has been established. Mason P was of opinion that, although there was a duty of care, there was no breach of it because the respondent had not acted unreasonably in not giving the appellant warning of the presence of the gully and also because he considered that it had not been established that, if a warning had been given, it would have led to the avoidance of the accident. 6 There was no mention during the argument of any question of contributory negligence. Contributory negligence had, however, been pleaded by the respondent in her notice of grounds of defence in the District Court. Particulars of the contributory negligence alleged were given. These were summarised as failing to keep a proper lookout, riding the motor cycle at an excessive speed, and riding in an area of the respondent's property "where it was inappropriate to do so." 7 The matter would not have been appropriately dealt with by notice of contention, if one had been filed, because the respondent was not seeking to uphold his Honour's judgment on a ground different from that upon which he had relied; see Order 51 r 21 of the Rules. 8 The case is one where it would appear that no attention was given to the issue of contributory negligence by counsel for the respondent. The respondent now seeks a variation of the orders made on 13 May 1999 in order that there may be a new trial of the issue of contributory negligence as well as of damages. 9 Filed with the notice of motion were submissions relied on by the respondent. The submissions say that the issue of contributory negligence has not been determined. It was not determined by the trial judge because he found a verdict for the respondent and it was not dealt with in the appeal because the matter was not raised. Counsel said that there was evidence upon which a finding of contributory negligence could be made. Reference was made to the transcript in various places. We agree that there is evidence upon which a Court could find contributory negligence but we do not, of course, express any view on what the outcome of any determination of that question might be. 10 In written submissions filed on behalf of the appellant it was said that the orders sought in the notice of appeal were that the appeal be allowed, that there be a verdict for the appellant in lieu of that entered for the respondent in the District Court and that the matter be remitted to the District Court for the assessment of damages "only". Counsel for the appellant said that while the effect of Part 51 r22, which permits the Court to make such orders as are appropriate even though they are not sought in any notice of appeal, had not been overlooked, no formal document had been filed by the respondent seeking, in the event that the appellant was successful, any different orders. Counsel for the appellant emphasised that the appeal had been conducted so that the only issue between the parties was whether the orders should or should not be made as sought in the notice of appeal. Counsel emphasised that nothing had been said about contributory negligence in the respondent's written submissions or in oral argument at the trial. 11 Counsel also said:

"Leaving open, at the re-hearing, the question of contributory negligence must have the result that, although the opponent cannot be found to be wholly responsible for his injuries, he may, at least theoretically, be found to be almost entirely responsible for these injuries." (The emphasis is that of the author of the submission)

12 It was then submitted that, for all practical purposes, the proposition that the issue of contributory negligence be left to the trial judge involved there being a completely new trial, with the proviso that there must be a finding that, to some extent, the appellant's negligence led to the respondent's damages. This was not argued before the Court of Appeal "and would have been the subject of submissions on behalf of the opponent (the appellant) if it had been raised." 13 Counsel noted that the orders made by the Court on 13 May 1999 had not been entered so that the power of the Court to set aside or vary its judgment pursuant to Part 40 r 9 of the Supreme Court Rules was applicable. But counsel submitted that the power would not be exercised unless the respondent could show that by accident without fault on his part he had not been heard. Reference was made to the judgment of Mason CJ in Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300 at 303. 14 In his submissions in reply counsel for the respondent emphasised that there was no finding in relation to contributory negligence so that there was no basis for any appeal or cross-appeal in relation to that issue. The issues of contributory negligence and damages could only become relevant in the event that the Court of Appeal upheld the appeal. That the Court would do so was not known until the Court delivered its reserved judgment. No submissions were made to the Court of Appeal as to contributory negligence because the issue had not arisen at that stage. Counsel emphasised that the respondent did not seek to re-open the order of the court determining the issue which was argued before it. What she sought was a variation of the orders consequential upon that decision. Counsel referred to the judgment of Brennan J in Autodesk at 309. 15    Counsel for the respondent conceded that it was clear that, with the benefit of hindsight, it would have been prudent to indicate to the Court that, if the appeal was upheld, the consequential orders should have included an order that the issue of contributory negligence, as well as the issue of damages, be the subject of the new trial. However, it was submitted that the failure in this regard should not have the consequence that the issue of contributory negligence went undetermined. Counsel said that, if the conduct of the appellant involved an element of contributory negligence, there was no injustice in the verdict being reduced on that account. Counsel said that the orders should in justice be made. Otherwise the issue of contributory negligence would not have been determined. 16    The discussion by the members of the Court of the problem to which this case gave rise shows that it is a case where there could be a live question about contributory negligence. 17    We do not regard the case as covered by the decision of the High Court in Autodesk. In our opinion it is covered by the provisions of r 9 of Part 40 and r 22 of Part 51 of the Rules. The case is one in which counsel for a party overlooked a possible contingency. Justice, in our opinion, requires that the respondent be placed in the position in which she would have been if the trial judge had found negligence established against her. In that event, the trial judge would have had to come to the question of contributory negligence. Obviously there is prejudice to the appellant in what the respondent seeks because there is a real risk that the appellant's damages will be reduced. But that was always the situation. Contributory negligence was a live issue at the trial. 18 In our opinion there is no other matter of prejudice which could be relied upon. The only oral evidence given in the case was that of the appellant. The respondent was not called no doubt because she did not witness the accident. There must be a new trial on the issue of damages. That trial is unlikely to be prolonged by the need to determine the issue of contributory negligence. The appellant will need to be called on damages. His evidence about contributory negligence, in respect of which the respondent will bear the onus, is unlikely to be lengthy. The costs of the new trial are unlikely to be significantly increased by the need to determine whether or not there was contributory negligence and the cost of the new trial will, in any event, be paid by the respondent because the appellant must recover damages. 19 Accordingly we have decided that the order sought in the notice of motion, namely that Order 3 of the orders made by the Court be varied to include an order for a new trial on the issue of contributory negligence, should be made. The costs of the motion should, however, be paid by the respondent because it would have been unnecessary for it to be filed had the matter been raised during the hearing of the appeal.

* * * * * * * *