Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443
Hearing dates:
25 November 2013
Decision date:
18 December 2013
Before:
McColl JA at [1]; Basten JA at [2]; Emmett JA at [105]
Decision:
In the indemnity proceedings CA 2012/300884:
(1) Dismiss the appeal.
(2) Order the appellant to pay the respondent's costs.
In proceedings CA 2012/300879:
(1) If either party wishes to:
(a) submit that the issue of contributory negligence should be remitted to the District Court, and
(b) supplement its written submissions with respect to the proper finding with respect to of contributory negligence
he or it should file written submissions, not exceeding eight pages, no later than 24 January 2014.
(2) Each party has until 5 February 2014 to file submissions in response, not exceeding five pages.
(3) If either party seeks to have the Court reconvene for the purpose of further oral argument, that application should be contained in the submissions referred to above.
(4) A party seeking a retrial should nevertheless comply with order (1)(a).
(5) If there is a reason why the Court should not dispose of costs at this stage, that should be noted in the submissions; otherwise the submissions may include proposed orders as to costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
APPEAL - erroneous fact-finding - whether appeal court can substitute its own findings - whether substantial miscarriage warranting retrial
DAMAGES - torts - negligence - motor vehicle accidents - future economic loss - past domestic care - future domestic care - challenges to assessment at trial
EVIDENCE - admissibility - opinion; expert report - assumptions - opinions based on measurements and calculations
EVIDENCE - witnesses - cross-examination - objection - rejection of cross-examination - whether topic of cross-examination covered by particulars in pleading
PROCEDURE - inadequacy of pleading - failure to particularise - no request for particulars - no notice before trial of objection to pleading - objection by ambush at trial procedurally unfair - refusal to grant adjournment to address amendment
TORTS - negligence - contributory negligence - challenge to findings of fact at trial - failure to address key elements of the comparison of responsibility of plaintiff and defendant
[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.
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AGLC
Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443
Case
[2013] NSWCA 443
Decision Date
CaseChat Overview and Summary
In the proceedings before the Court of Appeal of New South Wales, Boral Bricks Pty Ltd (appellant) appealed against a decision of the District Court concerning a motor vehicle accident. The respondent, Cosmidis, had sued Boral Bricks for damages in negligence. The appeal raised issues regarding the assessment of damages, including future economic loss and past and future domestic care, as well as challenges to findings of fact made at trial.
The primary legal issues before the Court of Appeal were whether the trial judge had made erroneous findings of fact, particularly in relation to the assessment of damages and the issue of contributory negligence. The court was required to determine whether it could substitute its own findings of fact for those of the trial judge and whether there had been a substantial miscarriage of justice warranting a retrial. Further questions arose concerning the admissibility of expert evidence, the scope of cross-examination, and the procedural fairness of objections raised at trial regarding the adequacy of pleadings.
The Court of Appeal considered the principles governing appeals against findings of fact, noting that an appellate court is reluctant to overturn a trial judge's findings unless they are demonstrably wrong. The court also addressed the procedural unfairness of raising objections to pleadings at trial without prior notice, and the potential for an adjournment to allow for amendments. Regarding contributory negligence, the court examined whether the trial judge had adequately addressed the comparison of responsibility between the plaintiff and the defendant.
In the indemnity proceedings, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs. In the main proceedings, the court did not immediately dispose of the appeal concerning contributory negligence, instead inviting further written submissions from the parties on whether the issue should be remitted to the District Court and on the proper finding of contributory negligence. The court also indicated that it would consider further oral argument and the disposition of costs after receiving these submissions.
Orders
Orders of the court
In the indemnity proceedings CA 2012/300884:
(1) Dismiss the appeal.
(2) Order the appellant to pay the respondent's costs.
In proceedings CA 2012/300879:
(1) If either party wishes to:
(a) submit that the issue of contributory negligence should be remitted to the District Court, and
(b) supplement its written submissions with respect to the proper finding with respect to of contributory negligence
he or it should file written submissions, not exceeding eight pages, no later than 24 January 2014.
(2) Each party has until 5 February 2014 to file submissions in response, not exceeding five pages.
(3) If either party seeks to have the Court reconvene for the purpose of further oral argument, that application should be contained in the submissions referred to above.
(4) A party seeking a retrial should nevertheless comply with order (1)(a).
(5) If there is a reason why the Court should not dispose of costs at this stage, that should be noted in the submissions; otherwise the submissions may include proposed orders as to costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]