Brittliffe v Brown - [2022] NSWCA 263

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Brittliffe v Brown [2022] NSWCA 263
Hearing dates: 9 August 2022
Date of orders: 14 December 2022
Decision date: 14 December 2022
Before: Meagher JA at [1];
Mitchelmore JA at [94];
Basten AJA at [95]
Decision:
Appeal dismissed with costs.

Catchwords:
TORTS – motor vehicle accident – personal injury – where appellant injured in single vehicle motorbike accident – whether primary judge erred in finding appellant was driver of motorbike at time of accident rather than pillion passenger
COSTS – offer of compromise – where joint offer made – where one offeror settles proceedings before trial and other offeror proceeds to judgment – where plaintiff’s outcome in each case no more favourable than offer – whether other offeror entitled to order for indemnity costs under UCPR r 42.15A

Legislation Cited:
Motor Accidents Compensation Act 1999 (NSW), s 119
Uniform Civil Procedure Rules 2005 (NSW), r 42.15A

Cases Cited:
R v Baskerville [1916] 2 KB 658
RHG Mortgage Limited v Ianni [2016] NSWCA 270
Ridley v Whipp (1916) 22 CLR 381; [1916] HCA 76
Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598

Category: Principal judgment
Parties: Dylan Patrick Brittliffe (Appellant)
Maurice James Brown (First Respondent)
Insurance Australia Ltd t/as NRMA Insurance (Second Respondent)
Representation:
Counsel:
D Toomey SC with A Naylor (Appellant)
J Catsanos SC with B Jones (Second Respondent)
Solicitors:
Elias Gates & Associates (Appellant)
Moray & Agnew (Second Respondent)

File Number(s): 2021/339057
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

16 November 2021

Before:

Olsson SC DCJ

File Number(s):

2017/79765

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant Mr Brittliffe suffered serious injuries in a single vehicle motorbike accident. At the time of the accident, he was participating in a charity “poker run” organised by the Newcastle chapter of the Nomads Motorcycle Club of which he was a member. When the accident occurred, the riders participating in the ride had left the Brewery Hotel in Newcastle and were headed towards the Nomads club house.

Whilst negotiating a sweeping left-hand bend on the two-lane Pacific Highway at Islington in Newcastle, the bike experienced a left-sided capsize, and slid on its left side at a speed of 45kph before colliding with a concrete barrier in the centre of the road. The likely cause of the capsize was that the motorcycle came into contact with a piece of carpet on the roadway causing its front wheel to slide out to the right of the bike. The appellant was separated from the motorcycle and slid across the roadway at about the same speed and in the same direction as the bike, also striking the concrete barrier. The injuries he sustained included a compound right tibial fracture with open wound, a moderately displaced fracture of the right fibula, a heelbone fracture and a left little finger extensor tendon…

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 Brittliffe v Brown

Details

AGLC: Brittliffe v Brown [2022] NSWCA 263
Case: [2022] NSWCA 263
Decision Date: 14 December 2022

CaseChat Overview and Summary

The appellant, Brittliffe, appealed a decision of the primary judge who found that Brittliffe was the driver of a motorbike at the time of a single-vehicle accident, rather than a pillion passenger as he contended. The appeal concerned both the factual finding regarding his role in the accident and the subsequent order for costs.

The central legal issues before the Court of Appeal were whether the primary judge erred in finding that the appellant was the driver of the motorbike, and whether the primary judge correctly applied the rules regarding offers of compromise, specifically Rule 42.15A of the Uniform Civil Procedure Rules (UCPR), in ordering indemnity costs against the appellant.

The Court of Appeal upheld the primary judge's finding that the appellant was the driver, finding no error in the assessment of the evidence. Regarding the costs issue, the Court considered the joint offer of compromise made by the respondents. As the appellant's outcome at trial was not more favourable than the offer, the Court found that the respondents were entitled to an order for indemnity costs pursuant to UCPR r 42.15A.

Consequently, the appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Brittliffe v Brown [2022] NSWCA 263
Hearing dates:	9 August 2022
Date of orders:	14 December 2022
Decision date:	14 December 2022
Before:	Meagher JA at [1]; Mitchelmore JA at [94]; Basten AJA at [95]
Decision:	Appeal dismissed with costs.
Catchwords:	TORTS – motor vehicle accident – personal injury – where appellant injured in single vehicle motorbike accident – whether primary judge erred in finding appellant was driver of motorbike at time of accident rather than pillion passenger COSTS – offer of compromise – where joint offer made – where one offeror settles proceedings before trial and other offeror proceeds to judgment – where plaintiff’s outcome in each case no more favourable than offer – whether other offeror entitled to order for indemnity costs under UCPR r 42.15A
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW), s 119 Uniform Civil Procedure Rules 2005 (NSW), r 42.15A
Cases Cited:	R v Baskerville [1916] 2 KB 658 RHG Mortgage Limited v Ianni [2016] NSWCA 270 Ridley v Whipp (1916) 22 CLR 381; [1916] HCA 76 Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598
Category:	Principal judgment
Parties:	Dylan Patrick Brittliffe (Appellant) Maurice James Brown (First Respondent) Insurance Australia Ltd t/as NRMA Insurance (Second Respondent)
Representation:	Counsel: D Toomey SC with A Naylor (Appellant) J Catsanos SC with B Jones (Second Respondent) Solicitors: Elias Gates & Associates (Appellant) Moray & Agnew (Second Respondent)
File Number(s):	2021/339057
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 16 November 2021 Before: Olsson SC DCJ File Number(s): 2017/79765