Carian v Elton - [2006] NSWCA 168

New South Wales

Court of Appeal

CITATION: Carian and Others v Elton [2006] NSWCA 168

HEARING DATE(S): 5 April 2006

JUDGMENT DATE:
29 June 2006

JUDGMENT OF: Beazley JA at 1; Santow JA at 2; Tobias JA at 124

DECISION: Appeals in 40265/05, 40267/05 and 40268/05 are dismissed with costs.

CATCHWORDS: NEGLIGENCE – motorcycle accident – dispute as to driver – permissible inferences as to likely driver – presumption of continuance – numerical probability distinguished from balance of probabilities standard. - EVIDENCE – rejection of expert evidence based on factual assumptions made. - EVIDENCE – evaluation of contested evidence of admissions – “rider” with respect to motorcycle carrying two persons – “riding” with respect to motorcycle carrying two persons. - Luxton v Vines (1952) 85 CLR 352 distinguished. - Carian v Elton (2000) 31 MVR 421, considered. - Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307, considered.

CASES CITED: Baker v Market Harborough Industrial Co-operative Society Ltd [1953] 1 WLR 1472
Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307
Carian v Elton (2000) 31 MVR 421
Fox v Percy (2003) 214 CLR 118
Luxton v Vines (1952) 85 CLR 352
Maher-Smith v Gaw [1969] VR 371
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Nesterczuk v Mortimore (1965) 115 CLR 140
Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720
Van Eeden v Henry (2005) 42 MVR 375

PARTIES: Clinton James CARIAN (Appellant CA 40265/05)
Debbie SALISBURY (Appellant CA 40267/05)
Christopher CARIAN (Appellant CA 40268/05)
Ivan JONES (Appellant CA 40423/05)
Scott Peter ELTON (Respondent in all above matters)

FILE NUMBER(S): CA 40265/05; 40267/05; 40268/05; 40423/05

COUNSEL: CA 40265/05; CA 40267/05; CA 40268/05:
D T KENNEDY, SC/ A PORTHOUSE (Appellants)
D J RUSSELL, SC/ O ASSABGY (Respondent)
CA 40423/05:
M A CLEARY (Appellant)
P S JONES (Respondent)

SOLICITORS: CA 40265/05; CA 40267/05; CA 40268/05:
Herbert Weller (Appellants)
Ray Wehbe & Co (Respondent)
CA 40423/05:
Turner Whelan (Appellant)
Matthews Dooley & Gibson (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC8229/97; DC6588/98; DC6589/98; DC8368/97

LOWER COURT JUDICIAL OFFICER: Garling DCJ

LOWER COURT DATE OF DECISION: 10 December 2004

CA 40265/05 (DC 8229/97)
CA 40267/05 (DC 6588/98)
CA 40268/05 (DC 6589/98)
CA 40423/05 (DC 8368/97)

BEAZLEY JA
SANTOW JA
TOBIAS JA
29 JUNE 2006

Clinton James CARIAN; Debbie SALISBURY; Christopher CARIAN; Ivan JONES v Scott Peter ELTON

Judgment

1 BEAZLEY JA: I agree with the judgment of Santow JA and with his Honour's orders and with the further remarks of Tobias JA in his judgment. As their Honours have canvassed the issues in detail there is nothing further for me to add.

2 SANTOW JA:

OVERVIEW

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 Carian v Elton

Details

AGLC: Carian v Elton [2006] NSWCA 168
Case: [2006] NSWCA 168
Decision Date: 29 June 2006

CaseChat Overview and Summary

In *Carian v Elton*, the New South Wales Court of Appeal considered a dispute arising from a motorcycle accident. The central issue was the identification of the driver of the motorcycle at the time of the collision, which had resulted in significant injuries to the plaintiff. The plaintiff sought to establish that the defendant was the rider of the motorcycle.

The court was required to determine whether the evidence presented was sufficient to establish, on the balance of probabilities, that the defendant was the rider of the motorcycle. This involved evaluating the admissibility and weight of contested evidence, including admissions made by the defendant, and considering whether permissible inferences could be drawn from the circumstances of the accident to identify the driver. The court also had to consider the rejection of expert evidence that was based on disputed factual assumptions.

The Court of Appeal affirmed the trial judge's findings, holding that the evidence, particularly the admissions made by the defendant, was sufficient to establish on the balance of probabilities that he was the rider of the motorcycle. The court distinguished between numerical probability and the standard of proof required in civil cases, emphasizing that the latter requires a finding that an event is more likely than not. The court also found that the trial judge had correctly rejected the expert evidence due to its reliance on unsubstantiated factual assumptions. The appeals were dismissed.

Orders

Orders of the court

Appeals in 40265/05, 40267/05 and 40268/05 are 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Carian and Others v Elton [2006] NSWCA 168
HEARING DATE(S):	5 April 2006
JUDGMENT DATE:	29 June 2006
JUDGMENT OF:	Beazley JA at 1; Santow JA at 2; Tobias JA at 124
DECISION:	Appeals in 40265/05, 40267/05 and 40268/05 are dismissed with costs.
CATCHWORDS:	NEGLIGENCE – motorcycle accident – dispute as to driver – permissible inferences as to likely driver – presumption of continuance – numerical probability distinguished from balance of probabilities standard. - EVIDENCE – rejection of expert evidence based on factual assumptions made. - EVIDENCE – evaluation of contested evidence of admissions – “rider” with respect to motorcycle carrying two persons – “riding” with respect to motorcycle carrying two persons. - Luxton v Vines (1952) 85 CLR 352 distinguished. - Carian v Elton (2000) 31 MVR 421, considered. - Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307, considered.
CASES CITED:	Baker v Market Harborough Industrial Co-operative Society Ltd [1953] 1 WLR 1472 Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 Carian v Elton (2000) 31 MVR 421 Fox v Percy (2003) 214 CLR 118 Luxton v Vines (1952) 85 CLR 352 Maher-Smith v Gaw [1969] VR 371 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Nesterczuk v Mortimore (1965) 115 CLR 140 Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 Van Eeden v Henry (2005) 42 MVR 375
PARTIES:	Clinton James CARIAN (Appellant CA 40265/05) Debbie SALISBURY (Appellant CA 40267/05) Christopher CARIAN (Appellant CA 40268/05) Ivan JONES (Appellant CA 40423/05) Scott Peter ELTON (Respondent in all above matters)
FILE NUMBER(S):	CA 40265/05; 40267/05; 40268/05; 40423/05
COUNSEL:	CA 40265/05; CA 40267/05; CA 40268/05: D T KENNEDY, SC/ A PORTHOUSE (Appellants) D J RUSSELL, SC/ O ASSABGY (Respondent) CA 40423/05: M A CLEARY (Appellant) P S JONES (Respondent)
SOLICITORS:	CA 40265/05; CA 40267/05; CA 40268/05: Herbert Weller (Appellants) Ray Wehbe & Co (Respondent) CA 40423/05: Turner Whelan (Appellant) Matthews Dooley & Gibson (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC8229/97; DC6588/98; DC6589/98; DC8368/97
LOWER COURT JUDICIAL OFFICER:	Garling DCJ
LOWER COURT DATE OF DECISION:	10 December 2004