Blundell v Leighton

[2013] ACTCA 1

ANDREW BLUNDELL v YVONNE LEIGHTON
[2013] ACTCA 1 (11 January 2013)

APPEAL AND NEW TRIAL – assessment of respondent’s credibility – significance of delay in delivering judgment – significance of respondent’s inadequate reporting – test for causation used by trial judge – failure to mention statutory test – test used by trial judge included requirements of statutory test – no error found – appeal dismissed.

Civil Law (Wrongs) Act 2002 (ACT), ss 45(1)(a), 46
Civil Liability Act2002 (NSW), s 5D(1)

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Leighton v Blundell [2011] ACTSC 136
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 47 of 2011
No. SC 846 of 2006

Judges:        Penfold, Burns and Buchanan JJ
Court of Appeal of the Australian Capital Territory
Date:           11 January 2013

IN THE SUPREME COURT OF THE     )          No. ACTCA 47 of 2011
  )          No. SC 846 of 2006
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ANDREW BLUNDELL

Appellant

AND:YVONNE LEIGHTON

Respondent

ORDER

Judges:  Penfold, Burns and Buchanan JJ
Date:  11 January 2013 
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal is dismissed with costs.

IN THE SUPREME COURT OF THE     )          No. ACTCA 47 of 2011
  )          No. SC 846 of 2006
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ANDREW BLUNDELL

Appellant

AND:YVONNE LEIGHTON

Respondent

Judges:  Penfold, Burns and Buchanan JJ
Date:  11 January 2013 
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1. Sections 45(1)(a) and 46 of the Civil Law (Wrongs) Act 2002 (ACT) (“the Act”) provide as follows:

45(1)    A decision that negligence caused particular harm comprises the following elements:

(a)      that the negligence was a necessary condition of the happening of the harm (‘factual causation’);

46       In deciding liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation.

1. In this appeal the appellant seeks a new trial of the assessment of damages in a case to which those provisions applied (Leighton v Blundell [2011] ACTSC 136). The appellant alleges that the trial judge’s evaluation of the evidence at the initial trial should be regarded as unreliable because of a delay in delivering judgment. We do not accept that criticism.

1. It was also argued that the trial judge misunderstood or misapplied the test he was required to apply to the issue of causation, and so failed to apply the correct test, namely that stated by s 45(1)(a) of the Act. We accept that there is an…