Castro v Hillery

Case [2002] QCA 359

SUPREME COURT OF QUEENSLAND

CITATION:

Castro v Hillery & Ors [2002] QCA 359

PARTIES:

LOLINY CASTRO (BY HER LITIGATION GUARDIAN ANTONIO CASTRO)
(plaintiff/respondent)

v

BRIAN ERNEST HILLERY
(first defendant)

SUNCORP METWAY INSURANCE LIMITED (formerly SUNCORP GENERAL INSURANCE LIMITED)  ACN 075 695 966
(second defendant/first appellant)

NORTH QUEENSLAND ELECTRICITY CORPORATION LIMITED ACN 078 848 978
(third defendant/second appellant)

COUNCIL OF THE CITY OF MOUNT ISA
(fourth defendant)

FILE NO/S:

Appeal No 590 of 2002
SC No 11 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Mt Isa

DELIVERED ON:

20 September 2002

DELIVERED AT:

Brisbane

HEARING DATE:

1 August 2002

JUDGES:

McMurdo P, Williams JA and Wilson J
Separate reasons for judgment of each member of the Court; Williams JA and Wilson J concurring as to the orders made, McMurdo P dissenting in part

ORDERS:

1.  Appeal allowed with costs;
2.  Order that the judgment at first instance be varied by: (a)  deleting the amount $4,551,900.06 and inserting  in lieu the amount $4,492,500.06;
(b)  in paragraph 5 of the order deleting the words   “on the indemnity basis” and inserting in lieu thereof “on the standard basis”. 
3.  The Court will allow the parties 7 days within which to make written submissions with respect to costs thrown away by the late abandonment of grounds of appeal.

CATCHWORDS:

Rules of the Supreme Court 1900 (Qld), O 26, O 39 r 29C
Uniform Civil Procedure Rules 1999 (Qld), r 360

Campbell v Jones & Anor [2002] QCA 332; Appeal No 11496 of 2001, 3 September 2002, followed
Elford v FAI General Insurance Company Limited [1994] 1 Qd R 258, followed
Gaskins v British Aluminium Co Ltd (1976) QB 524, considered
Hiscox v Woods & GIO General Limited [2002] QSC 64, considered
Proetta v Times Newspapers Ltd (1991) 1 WLR 337, considered
Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & COI Pty Ltd (2001) 53 NSWLR 626, followed

TORTS – NEGLIGENCE – CONTRIBUTORY NEGILIGENCE – PARTICULAR CASES – ROAD ACCIDENT CASES – where respondent struck by taxi whilst using a pedestrian crossing and severely brain damaged – whether respondent was contributorily negligent by walking into the taxi

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – FINDINGS ON ISSUE OF NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – appeal against finding by learned trial judge that immediately before being struck the respondent jumped back from the taxi – where evidence-in-chief of witness stated the respondent had jumped backwards – where cross-examination of witness showed the witness did not have the respondent constantly in vision – whether any inconsistency in evidence-in-chief and cross-examination – whether there was anything unreasonable or unjustifiable in the findings of the learned trial judge – whether learned trial judge misinterpreted or misapplied the evidence of the witness – whether any last moment movement by the respondent is determinative  of the issue of contributory negligence

DAMAGES – MEASURE…

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Castro v Hillery [2002] QCA 359
Case
[2002] QCA 359
Decision Date

CaseChat Overview and Summary

The case of Castro v Hillery involved a dispute between the appellant and the respondent, who had been severely injured in a road accident. The respondent was struck by a taxi while using a pedestrian crossing, resulting in severe brain damage. The dispute centred on whether the respondent's actions contributed to the accident and the assessment of damages. The matter was heard in the Supreme Court of Victoria.

The central legal issues before the court were whether the trial judge had correctly assessed the contributory negligence of the respondent and whether the trial judge had erred in the assessment of damages. The court had to consider whether there was any inconsistency in the witness's evidence regarding the respondent's movements before the accident, and whether this affected the finding of contributory negligence. Additionally, the court examined the assessment of future earning capacity and loss of superannuation benefits.

The court found that the trial judge had not erred in his findings on contributory negligence despite the inconsistency in the witness's evidence. The court held that the trial judge's findings were reasonable and that the inconsistency did not affect the overall conclusion. Regarding damages, the court held that the trial judge had not erred in his assessment of future earning capacity and loss of superannuation, although a slight adjustment in the quantum was necessary. The court also found that the trial judge had erred in awarding costs on an indemnity basis, and the order was varied to reflect a standard basis.

The court allowed the appeal with costs and varied the original judgment. The amount awarded for future earning loss was reduced slightly, and the basis for costs was changed from indemnity to standard. The court also invited the parties to submit written arguments regarding costs thrown away by the late abandonment of certain grounds of appeal.

Orders

Orders of the court

1. Appeal allowed with costs;

2. Order that the judgment at first instance be varied by: (a) deleting the amount $4,551,900.06 and inserting in lieu the amount $4,492,500.06;

(b) in paragraph 5 of the order deleting the words “on the indemnity basis” and inserting in lieu thereof “on the standard basis”.

3. The Court will allow the parties 7 days within which to make written submissions with respect to costs thrown away by the late abandonment of grounds of appeal.

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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