Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Boateng v Dharamdas [2016] NSWCA 183 Hearing dates: 4 March 2016 Decision date: 02 August 2016 Before: Gleeson JA at [1]
Leeming JA at [174]
Davies J at [175]Decision: 1. Appeal allowed in part.
2. Notice of cross-appeal dismissed.
3. Set aside order 1 made by Sorby DCJ on 1 September 2015.
4. Remit the matter to the District Court for a new trial on damages.
5. Respondent to pay 40 per cent of the appellant’s costs in this Court.
6. Respondent to have a certificate under the Suitors’ Fund Act 1951 (NSW) if otherwise entitled.Catchwords: TORTS (negligence) – motor vehicle accident – challenge to primary judge’s findings of point of impact of collision – whether driver failed to keep a proper lookout – content of driver’s duty to other road users including pedestrians – whether reasonable care for their safety having regard to all circumstances with which driver is confronted – requirement to exercise high degree of vigilance near other traffic and in vicinity of intersections – whether attention given to different features of the road – causation – expert evidence – whether response time available to driver insufficient to avoid collision with pedestrian – contributory negligence – Civil Liability Act s 5B and 5R – pedestrian’s duty to take reasonable care for own safety – apportionment – challenge to primary judge’s finding – whether error demonstrated – damages – where inaccurate and incomplete history of respondent’s pre-accident symptoms and conditions provided to medical experts – whether adverse credit finding against respondent taken into account – whether error in accepting medical evidence based on inaccurate and incomplete histories – whether new trial for re-assessment of damages should be ordered Legislation Cited: Civil Liability Act 2002 (NSW), ss 3B(2)(a), 5B(1), 5B(2), D, E, R, S
Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9
Motor Accidents Compensation Act 1999 (NSW), s 138
Suitors’ Fund Act 1951 (NSW)
Supreme Court Act 1970 (NSW), s 75ACases Cited: Anikin v Sierra [2004] HCA 64; 211 CLR 621
Bitupave Ltd t/as Boral Asphalt v Pillinger [2015] NSWCA 298
Blacktown City Council v Hocking [2008] NSWCA 144; Aust Torts Rep 81-956
Boral Bricks Pty Ltd v Cosmidis (No. 2) [2014] NSWCA 139; 86 NSWLR 393
Commonwealth of Australia v Gretton [2008] NSWCA 117
Derrick v Cheung [2001] HCA 48; 181 ALR 301
Dungan v Chan [2013] NSWCA 182; (2013) 64 MVR 249
Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72
Johnston v Stock [2014] NSWCA 147
Manley v Alexander [2005] HCA 79; 80 ALJR 413
Marien v Gardiner [2013] NSWCA 396; 66 MVR 1
Nominal Defendant v Green [2013] NSWCA 219; 64 MVR 354
Pennington v Norris (1956) 96 CLR 10
Pledge v Roads and Traffic Authority (2004) 205 ALR 56
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492
Stocks & McDonald Hamilton Co Pty…
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- AGLC
- Boateng v Dharamdas [2016] NSWCA 183
- Case
- [2016] NSWCA 183
- Decision Date
CaseChat Overview and Summary
The appeal in *Boateng v Dharamdas* concerned a motor vehicle accident involving the appellant driver and the respondent pedestrian. The primary judge had made findings regarding the point of impact and the appellant's failure to keep a proper lookout, finding the appellant negligent. The pedestrian's duty of care to other road users, including pedestrians, and the requirement for drivers to exercise a high degree of vigilance, particularly near intersections and other traffic, were central to the dispute.
The legal issues before the Court of Appeal included whether the primary judge erred in their findings concerning the point of impact and the appellant's negligence. The court also considered whether the primary judge correctly applied the principles of causation, particularly in light of expert evidence regarding the driver's response time. Furthermore, the appeal addressed the primary judge's findings on contributory negligence, the apportionment of liability, and whether an error was demonstrated in these findings. Finally, the court examined whether the primary judge erred in accepting medical evidence for the assessment of damages, given that the respondent had provided inaccurate and incomplete histories of pre-accident symptoms and conditions to the medical experts, and whether this warranted a new trial for the re-assessment of damages.
The Court of Appeal allowed the appeal in part, finding that the primary judge had erred in accepting medical evidence for the assessment of damages due to the inaccurate and incomplete histories provided by the respondent. The court reasoned that this error was significant enough to warrant a new trial on the issue of damages. The notice of cross-appeal was dismissed. The order setting aside the primary judge's order and remitting the matter for a new trial on damages was made. The respondent was ordered to pay 40 per cent of the appellant's costs in the Court of Appeal and was granted a certificate under the Suitors’ Fund Act 1951 (NSW) if otherwise entitled.
The legal issues before the Court of Appeal included whether the primary judge erred in their findings concerning the point of impact and the appellant's negligence. The court also considered whether the primary judge correctly applied the principles of causation, particularly in light of expert evidence regarding the driver's response time. Furthermore, the appeal addressed the primary judge's findings on contributory negligence, the apportionment of liability, and whether an error was demonstrated in these findings. Finally, the court examined whether the primary judge erred in accepting medical evidence for the assessment of damages, given that the respondent had provided inaccurate and incomplete histories of pre-accident symptoms and conditions to the medical experts, and whether this warranted a new trial for the re-assessment of damages.
The Court of Appeal allowed the appeal in part, finding that the primary judge had erred in accepting medical evidence for the assessment of damages due to the inaccurate and incomplete histories provided by the respondent. The court reasoned that this error was significant enough to warrant a new trial on the issue of damages. The notice of cross-appeal was dismissed. The order setting aside the primary judge's order and remitting the matter for a new trial on damages was made. The respondent was ordered to pay 40 per cent of the appellant's costs in the Court of Appeal and was granted a certificate under the Suitors’ Fund Act 1951 (NSW) if otherwise entitled.
Orders
Orders of the court
1. Appeal allowed in part.
2. Notice of cross-appeal dismissed.
3. Set aside order 1 made by Sorby DCJ on 1 September 2015.
4. Remit the matter to the District Court for a new trial on damages.
5. Respondent to pay 40 per cent of the appellant’s costs in this Court.
6. Respondent to have a certificate under the Suitors’ Fund Act 1951 (NSW) 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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