Chamberlain v Callaghan - [2004] NSWCA 44

CITATION: Chamberlain v Callaghan & Ors [2004] NSWCA 44

HEARING DATE(S): 25 February 2004

JUDGMENT DATE:
25 February 2004

JUDGMENT OF: Handley JA at 1; Beazley JA at 28; Tobias JA at 29

DECISION: Appeal dismissed with costs.

CATCHWORDS: Appeal - findings of fact - credit - no basis for appellate intervention - no question of principle

CASES CITED: March v E & M H Stramare Pty Ltd (1991) 171 CLR 506

PARTIES :
Scott Chamberlain (Appellant)
Rod Callaghan (First Respondent)
Ian Reginald Knox (Second Respondent)
Pioneer Concrete (NSW) Pty Ltd (Third Respondent)

FILE NUMBER(S): CA 40315/03

COUNSEL:
S Norton SC (Appellant)
W S Reynolds (First Respondent)
K P Rewell SC (Second and Third Respondents)

SOLICITORS: Brydens Law Office (Appellant)
CKB Partners (First Respondent)
Creagh & Creagh (Second and Third Respondents)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 1886/00

LOWER COURT
JUDICIAL OFFICER : Gibson DCJ

CA 40315/03
DC 1886/00

HANDLEY JA
BEAZLEY JA
TOBIAS JA
25 February 2004

SCOTT CHAMBERLAIN v ROD CALLAGHAN & 2 ORS

Judgment

1 HANDLEY JA: The plaintiff has appealed from the judgment of Gibson DCJ who dismissed his action against the driver of a Ford Falcon motor vehicle and the driver and owner of a prime mover and dog trailer which were involved in his accident on 19 March 1997.

2 The plaintiff was riding a motorcycle west on the M4 near Prospect in the near side lane close to the shoulder or breakdown lane. It was about 3 o’clock in the afternoon on a weekday, the weather was fine and sunny, and the traffic was moderately heavy but flowing.

3 The first defendant’s vehicle had been left parked as far to the left as possible off the M4 in the breakdown lane or shoulder. The breakdown lane or shoulder at this point was quite narrow and the Ford Falcon intruded onto lane one for some three centimetres and its offside rear vision mirror for some 200 centimetres. Lane one itself was three metres wide at this point.

4 The second defendant’s truck was being driven west in lane one and as it approached the stationary Falcon it veered somewhat to the right into lane two to safely pass. Mr Knox, the driver, said he did this because he was concerned that someone in the stationary vehicle might have opened the door to get out and he wanted to leave a margin to allow for that situation. His truck was 2.6 metres wide and since lane one was only three metres wide, he would naturally have moved to the right in any event.

5 The plaintiff, riding his motorcycle behind Mr Knox’s truck, decided that he could proceed through the gap between the parked vehicle and the truck and pass the truck on its near side. In the process, he came to disaster, hence these proceedings.

6 It is not clear whether the plaintiff’s motorcycle first struck the parked car or whether it first made contact with the prime mover being driven…

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 Chamberlain v Callaghan

Details

AGLC: Chamberlain v Callaghan [2004] NSWCA 44
Case: [2004] NSWCA 44
Decision Date: 25 February 2004

CaseChat Overview and Summary

Chamberlain v Callaghan concerned an appeal to the New South Wales Court of Appeal from a decision of a primary judge. The appellant, Chamberlain, sought to challenge findings of fact made by the primary judge in the original proceedings.

The central legal issue before the Court of Appeal was whether there was a sufficient basis to intervene in the primary judge's findings of fact, particularly concerning the credit of witnesses. The appeal did not raise any significant questions of legal principle.

The Court of Appeal, comprising Handley, Beazley and Tobias JJA, found no error in the primary judge's assessment of the evidence and the credit of the witnesses. Their Honours concluded that there was no objective basis upon which the appellate court could or should interfere with the findings of fact made at first instance. The appeal was therefore dismissed.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

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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CITATION:	Chamberlain v Callaghan & Ors [2004] NSWCA 44
HEARING DATE(S):	25 February 2004
JUDGMENT DATE:	25 February 2004
JUDGMENT OF:	Handley JA at 1; Beazley JA at 28; Tobias JA at 29
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	Appeal - findings of fact - credit - no basis for appellate intervention - no question of principle
CASES CITED:	March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
PARTIES :	Scott Chamberlain (Appellant) Rod Callaghan (First Respondent) Ian Reginald Knox (Second Respondent) Pioneer Concrete (NSW) Pty Ltd (Third Respondent)
FILE NUMBER(S):	CA 40315/03
COUNSEL:	S Norton SC (Appellant) W S Reynolds (First Respondent) K P Rewell SC (Second and Third Respondents)
SOLICITORS:	Brydens Law Office (Appellant) CKB Partners (First Respondent) Creagh & Creagh (Second and Third Respondents)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 1886/00
LOWER COURT JUDICIAL OFFICER :	Gibson DCJ