Azzopardi v. Constable; Azzopardi v. Thompson - [2006] NSWCA 319

New South Wales

Court of Appeal

CITATION: Azzopardi v. Constable; Azzopardi v. Thompson [2006] NSWCA 319
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 2 November 2006

JUDGMENT DATE:
22 November 2006

JUDGMENT OF: Hodgson JA at 1; Ipp JA at 49; McColl JA at 57

DECISION: 1. Appeals allowed. 2. Verdicts and judgments for the respondents varied by substituting in each case a reduction for contributory negligence of 50% and making consequential amendments. 3. Respondents to pay two-thirds of the appellant’s costs of the appeals, and to have a Suitors’ Fund certificate if otherwise entitled.

CATCHWORDS: TORT - NEGLIGENCE - Motor accident - Whether factual errors made by primary judge - Whether primary judge erred in finding negligence - Whether apportionment for contributory negligence unreasonable.

CASES CITED: Liftronic Pty. Limited v. Unver (2001) 179 ALR 321, [2001] HCA 24
Pledge v Roads and Traffic Authority (2004) 78 ALJR 572
Podrebersek v. Australian Iron & Steel Pty. Limited (1985) 59 ALJR 492

PARTIES: Emma Azzopardi - appellant
Warren James Constable - respondent
Edward Thompson - respondent

FILE NUMBER(S): CA 40086/06; CA 40087/06

COUNSEL: Mr. J. Poulos QC with Mr. J. Ryan for appellant
Mr. B. Dooley with Mr. T. Edwards for respondents

SOLICITORS: Sparke Helmore, Newcastle for appellant
Curtis Gant Irving, Muswellbrook for Constable
Marshall & Partners, Raymond Terrace for Thompson

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 130/05
DC 131/05

LOWER COURT JUDICIAL OFFICER: Armitage DCJ

LOWER COURT DATE OF DECISION: 27 January 2006

CA 40086/06
CA 40087/06
DC 130/05
DC 131/05

HODGSON JA
IPP JA
McCOLL JA
Wednesday 22 November 2006

AZZOPARDI V. CONSTABLE

AZZOPARDI V. THOMPSON

Judgment

1 HODGSON JA: In separate proceedings, the first respondent (Mr. Constable) and the second respondent (Mr. Thompson) sued the appellant for damages for personal injury arising out of a motor accident that occurred on 28 April 2001.

2 On 27 January 2006, Armitage DCJ gave verdicts for both respondents, subject to a reduction in each case for contributory negligence of 25%. The amount of damages in each case was agreed. The appellant appeals against both these verdicts.

CIRCUMSTANCES

3 The accident occurred on the Golden Highway, about 6 kilometres east of the town of Merriwa. The appellant was driving a Toyota car east along that road, and that car struck both respondents in the eastbound lane not far from the commencement of a wide sweeping curve of the road, which goes to the right and downhill for vehicles travelling east.

4 For vehicles travelling east along that road, the road starts a significant descent about 300 metres or more before the likely point of impact in this case. The descent is straight for about 200 metres, after which a gradual curve to the right commences at about 135 metres before the likely point of impact. There is an advisory speed sign showing 85 kph, which appears to be at about 90 metres before the…

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 Azzopardi v. Constable; Azzopardi v. Thompson

Details

AGLC: Azzopardi v Constable; Azzopardi v Thompson [2006] NSWCA 319
Case: [2006] NSWCA 319
Decision Date: 22 November 2006

CaseChat Overview and Summary

The appeals in *Azzopardi v. Constable* and *Azzopardi v. Thompson* were heard by the Court of Appeal of New South Wales, presided over by Hodgson JA, Ipp JA, and McColl JA. The dispute arose from a motor accident, with the appellant alleging factual errors by the primary judge regarding findings of negligence and the apportionment of contributory negligence.

The central legal issues before the Court of Appeal were whether the primary judge had erred in finding the appellant negligent and whether the apportionment of contributory negligence was unreasonable in the circumstances of the accident.

The Court of Appeal allowed the appeals, finding that the primary judge's findings and apportionment were indeed unreasonable. The court varied the verdicts and judgments for the respondents by substituting a 50% reduction for contributory negligence in each case, making consequential amendments to reflect this adjustment. The respondents were ordered to pay two-thirds of the appellant's costs for the appeals, with a provision for a Suitors' Fund certificate if they otherwise qualified.

Orders

Orders of the court

1. Appeals allowed. 2. Verdicts and judgments for the respondents varied by substituting in each case a reduction for contributory negligence of 50% and making consequential amendments. 3. Respondents to pay two-thirds of the appellant's costs of the appeals, and to have a Suitors' Fund certificate if otherwise entitled.

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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CITATION:	Azzopardi v. Constable; Azzopardi v. Thompson [2006] NSWCA 319 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	2 November 2006
JUDGMENT DATE:	22 November 2006
JUDGMENT OF:	Hodgson JA at 1; Ipp JA at 49; McColl JA at 57
DECISION:	1. Appeals allowed. 2. Verdicts and judgments for the respondents varied by substituting in each case a reduction for contributory negligence of 50% and making consequential amendments. 3. Respondents to pay two-thirds of the appellant’s costs of the appeals, and to have a Suitors’ Fund certificate if otherwise entitled.
CATCHWORDS:	TORT - NEGLIGENCE - Motor accident - Whether factual errors made by primary judge - Whether primary judge erred in finding negligence - Whether apportionment for contributory negligence unreasonable.
CASES CITED:	Liftronic Pty. Limited v. Unver (2001) 179 ALR 321, [2001] HCA 24 Pledge v Roads and Traffic Authority (2004) 78 ALJR 572 Podrebersek v. Australian Iron & Steel Pty. Limited (1985) 59 ALJR 492
PARTIES:	Emma Azzopardi - appellant Warren James Constable - respondent Edward Thompson - respondent
FILE NUMBER(S):	CA 40086/06; CA 40087/06
COUNSEL:	Mr. J. Poulos QC with Mr. J. Ryan for appellant Mr. B. Dooley with Mr. T. Edwards for respondents
SOLICITORS:	Sparke Helmore, Newcastle for appellant Curtis Gant Irving, Muswellbrook for Constable Marshall & Partners, Raymond Terrace for Thompson
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 130/05 DC 131/05
LOWER COURT JUDICIAL OFFICER:	Armitage DCJ
LOWER COURT DATE OF DECISION:	27 January 2006