Bezzina v Taylor - [2001] NSWCA 388

CITATION: Bezzina v Taylor [2001] NSWCA 388

FILE NUMBER(S): CA 40801/00

HEARING DATE(S): 26 October 2001

JUDGMENT DATE:
26 October 2001

PARTIES :

Daniel John Bezzina - Appellant
Kathleen Taylor - Respondent

JUDGMENT OF: Stein JA at 1; Giles JA at 16; Rolfe AJA at 17

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : DC 4743/99

LOWER COURT
JUDICIAL OFFICER : Herron DCJ

COUNSEL: P Webb QC/R Royle - Appellant
J Hislop QC/P M Barham - Respondent

SOLICITORS: Stewart, Cuddy & Mockler - Appellant
Somerville & Co, North Sydney - Respondent

CATCHWORDS: TORT - NEGLIGENCE - motor vehicle accident - appellant on incorrect side of the road - whether overhanging vegetation required driving on incorrect side of the road - whether findings open on the evidence - DAMAGES - assessment - whether non-economic loss excessive - whether economic loss correct - ND

LEGISLATION CITED: Supreme Court Act 1970

CASES CITED:
n/a

DECISION: 1) Appeal dismissed with costs. 2) By consent verdict and judgment below varied by increasing judgment for the plaintiff/respondent to $253,183.

CA 40801/00

STEIN JA
GILES JA
ROLFE AJA

Friday 26 October 2001

Daniel John BEZZINA v Kathleen TAYLOR

Judgment

1 STEIN JA: The Court is of the opinion that the appeal should be dismissed with costs and that it does not raise any question of general principle pursuant to s 45(4) of the Supreme Court Act 1970.

2 The Court's reasons in short form will follow. Before embarking on those reasons it should be noted that upon the dismissal of the appeal, it is agreed between the parties that the verdict sum should be amended because of an arithmetical error made by his Honour in relation to the Fox v Wood component of the damages. In due course, the judgment will be varied.

3 The respondent was injured in a motor vehicle accident which occurred at Lisarow in 1996. Her motor car came into collision with a truck being driven by the appellant on a bend of the roadway.

4 At and before the time of impact the respondent was driving on her correct side of the road, which was a fairly narrow one, and with a dirt surface. At and before the time of impact the appellant was driving partly on his incorrect side of the road.

5 Prior to the collision occurring, both parties applied their brakes and skidded. His Honour found that the defendant was negligent. In my opinion, this was a conclusion that was completely open on the evidence.

6 The appellant submits that there was evidence that overhanging vegetation on the roadway prior to the curve where the accident occurred meant that he had to be on his incorrect side of the road. It may be mentioned that his Honour acknowledged the vegetation at the side of the road in giving his reasons for judgment.

7 When the relevant evidence about the overhanging vegetation is examined, it will be seen that it is equivocal and insufficient to establish…

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 Bezzina v Taylor

Details

AGLC: Bezzina v Taylor [2001] NSWCA 388
Case: [2001] NSWCA 388
Decision Date: 26 October 2001

CaseChat Overview and Summary

The appeal concerned a motor vehicle accident where the appellant was driving on the incorrect side of the road. The central dispute revolved around whether overhanging vegetation necessitated the appellant's position on the road and the subsequent assessment of damages. The matter was heard by Stein and Giles JJA, and Rolfe AJA.

The court was required to determine whether the findings of fact made by the trial judge were open on the evidence, particularly concerning the appellant's driving on the incorrect side of the road and the alleged necessity imposed by overhanging vegetation. Additionally, the court had to assess whether the non-economic loss awarded was excessive and whether the economic loss had been correctly calculated.

The appellate court upheld the trial judge's findings, concluding that the evidence did not support the appellant's contention that the overhanging vegetation forced them onto the incorrect side of the road. The court applied principles of negligence, finding that the appellant had failed to establish a defence or justification for their position on the road. Regarding damages, the court found the award for non-economic loss to be within acceptable limits, while also agreeing to vary the judgment for economic loss.

Consequently, the appeal was dismissed with costs. However, by consent of the parties, the verdict and judgment below were varied to increase the judgment for the plaintiff/respondent to $253,183.

Orders

Orders of the court

1) Appeal dismissed with costs. 2) By consent verdict and judgment below varied by increasing judgment for the plaintiff/respondent to $253,183.

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:	Bezzina v Taylor [2001] NSWCA 388
FILE NUMBER(S):	CA 40801/00
HEARING DATE(S):	26 October 2001
JUDGMENT DATE:	26 October 2001
PARTIES :	Daniel John Bezzina - Appellant Kathleen Taylor - Respondent
JUDGMENT OF:	Stein JA at 1; Giles JA at 16; Rolfe AJA at 17

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 4743/99
LOWER COURT JUDICIAL OFFICER :	Herron DCJ

COUNSEL:	P Webb QC/R Royle - Appellant J Hislop QC/P M Barham - Respondent
SOLICITORS:	Stewart, Cuddy & Mockler - Appellant Somerville & Co, North Sydney - Respondent
CATCHWORDS:	TORT - NEGLIGENCE - motor vehicle accident - appellant on incorrect side of the road - whether overhanging vegetation required driving on incorrect side of the road - whether findings open on the evidence - DAMAGES - assessment - whether non-economic loss excessive - whether economic loss correct - ND
LEGISLATION CITED:	Supreme Court Act 1970
CASES CITED:	n/a
DECISION:	1) Appeal dismissed with costs. 2) By consent verdict and judgment below varied by increasing judgment for the plaintiff/respondent to $253,183.