Chotiputhsilpa v Waterhouse - [2005] NSWCA 295

CITATION:
CHOTIPUTHSILPA v. WATERHOUSE & ORS. [2005] NSWCA 295
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S):
22/06/2005; 23/06/2005

JUDGMENT DATE:

2 September 2005

JUDGMENT OF:
Beazley JA at 1; Giles JA at 98; Ipp JA at 99

DECISION:
1. Appeal allowed in part.; 2. Confirm the verdict ordered by the trial judge in favour of the first respondent.; 3. Set aside the verdict ordered by the trial judge in favour of the RTA.; 4. Verdict and judgment in favour of the appellant against the second respondent, with damages to be assessed.; 5. Remit the matter to the District Court for a re-hearing limited to damages. ; 6. Dismiss the second respondent's Notice of Motion filed 24 June 2005.; 7. The parties are to bring in short written submissions as to costs within 7 days of the date of judgment.

CATCHWORDS:
TORTS - negligence - driver of motor vehicle struck pedestrian crossing traffic on Anzac Bridge - whether driver breached duty of care - TORTS - negligence - Roads and Traffic Authority responsible for design and construction of Anzac Bridge - adequacy of signage providing information about presence of pedestrian footpath underneath Bridge - whether duty of care owed to pedestrians - whether RTA breached its duty of care - appellant's presence on Bridge unexpected - contributory negligence - EVIDENCE - application that court view the accident site - fresh evidence - whether site has materially altered since date of accident - Evidence Act 1995 (NSW) ss. 53(3)(e) and 54 - REASONS - adequacy of - BIAS - whether trial judge's comments gave rise to reasonable apprehension of bias

LEGISLATION CITED:
Civil Liability Act 2002 (NSW)
Evidence Act 1995 (NSW)
Supreme Court Act 1970 (NSW)
Supreme Court Rules 1970 (NSW)

CASES CITED:
Beale v GIO (1997) 48 NSWLR 430
Commissioner of Main Roads v Jones [2005] HCA 27
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
Grassby v The Queen (1989) 168 CLR 1
Livesey v NSW Bar Association (1983) 151 CLR 288
McHale v Watson (1966) 115 CLR 199
R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256
Rosenberg v Percival (2001) 205 CLR 434
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Vakauta v Kelly (1989) 167 CLR 568
Waverley Council v Lodge [2001] NSWCA 439
Webb v The Queen (1994) 181 CLR 41

PARTIES:
Suppachai Chotiputhsilpa by his tutor Supparek Chotiputhsilpa (Appellant)
George Allan Waterhouse (First Respondent)
Roads and Traffic Authority of New South Wales (Second Respondent)

FILE NUMBER(S):
CA 40122/2004

COUNSEL:
B.J. Gross QC/S.B. Dixon (Appellant)
D.F. Rofe QC/B. Hull (First Respondent)
I.G. Harrison SC/W.S. Reynolds (Second Respondent)

SOLICITORS:
Tim Young & Associates (Appellant)
Malcolm Johns & Company (First Respondent)
Henry Davis York (Second Respondent)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 3857/00

LOWER COURT JUDICIAL OFFICER:
Twigg DCJ

CA 40122/2004
DC 3857/2000
BEAZLEY JA
GILES JA
IPP JA

2 September 2005

SUPPACHAI CHOTIPUTHSILPA by his…

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.

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Details

Case: [2005] NSWCA 295
Decision Date: 2 September 2005

CaseChat Overview and Summary

The appeal in *Chotiputhsilpa v Waterhouse* concerned a motor vehicle accident where the appellant, a pedestrian, was struck by the first respondent's vehicle while crossing the Anzac Bridge. The appellant also sued the Roads and Traffic Authority (RTA), alleging negligence in the design and construction of the bridge, specifically regarding the adequacy of signage for a pedestrian footpath located underneath. The appeal was heard by Beazley, Giles, and Ipp JJA.

The central legal issues before the Court of Appeal were whether the driver of the motor vehicle breached their duty of care to the pedestrian, and whether the RTA breached its duty of care to pedestrians by failing to adequately signpost the existence of the pedestrian footpath. The court also considered whether the appellant's presence on the bridge constituted contributory negligence and whether the trial judge's conduct gave rise to a reasonable apprehension of bias. Furthermore, an application was made for the court to view the accident site, raising questions about the admissibility of fresh evidence and whether the site had materially altered since the accident.

The Court of Appeal found that the driver of the motor vehicle had not breached their duty of care, as the appellant's presence on the bridge was unexpected. However, the court determined that the RTA had breached its duty of care to pedestrians. The court also dismissed the RTA's application to have the verdict confirmed in its favour. The appeal was allowed in part, with the verdict in favour of the RTA being set aside and a verdict entered for the appellant against the RTA, with damages to be assessed. The matter was remitted to the District Court for a re-hearing limited to the assessment of damages. The second respondent's notice of motion was dismissed.

Orders

Orders of the court

1. Appeal allowed in part.; 2. Confirm the verdict ordered by the trial judge in favour of the first respondent.; 3. Set aside the verdict ordered by the trial judge in favour of the RTA.; 4. Verdict and judgment in favour of the appellant against the second respondent, with damages to be assessed.; 5. Remit the matter to the District Court for a re-hearing limited to damages. ; 6. Dismiss the second respondent's Notice of Motion filed 24 June 2005.; 7. The parties are to bring in short written submissions as to costs within 7 days of the date of judgment.

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:	CHOTIPUTHSILPA v. WATERHOUSE & ORS. [2005] NSWCA 295 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	22/06/2005; 23/06/2005
JUDGMENT DATE:	2 September 2005
JUDGMENT OF:	Beazley JA at 1; Giles JA at 98; Ipp JA at 99
DECISION:	1. Appeal allowed in part.; 2. Confirm the verdict ordered by the trial judge in favour of the first respondent.; 3. Set aside the verdict ordered by the trial judge in favour of the RTA.; 4. Verdict and judgment in favour of the appellant against the second respondent, with damages to be assessed.; 5. Remit the matter to the District Court for a re-hearing limited to damages. ; 6. Dismiss the second respondent's Notice of Motion filed 24 June 2005.; 7. The parties are to bring in short written submissions as to costs within 7 days of the date of judgment.

CATCHWORDS:	TORTS - negligence - driver of motor vehicle struck pedestrian crossing traffic on Anzac Bridge - whether driver breached duty of care - TORTS - negligence - Roads and Traffic Authority responsible for design and construction of Anzac Bridge - adequacy of signage providing information about presence of pedestrian footpath underneath Bridge - whether duty of care owed to pedestrians - whether RTA breached its duty of care - appellant's presence on Bridge unexpected - contributory negligence - EVIDENCE - application that court view the accident site - fresh evidence - whether site has materially altered since date of accident - Evidence Act 1995 (NSW) ss. 53(3)(e) and 54 - REASONS - adequacy of - BIAS - whether trial judge's comments gave rise to reasonable apprehension of bias
LEGISLATION CITED:	Civil Liability Act 2002 (NSW) Evidence Act 1995 (NSW) Supreme Court Act 1970 (NSW) Supreme Court Rules 1970 (NSW)
CASES CITED:	Beale v GIO (1997) 48 NSWLR 430 Commissioner of Main Roads v Jones [2005] HCA 27 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 Grassby v The Queen (1989) 168 CLR 1 Livesey v NSW Bar Association (1983) 151 CLR 288 McHale v Watson (1966) 115 CLR 199 R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 Rosenberg v Percival (2001) 205 CLR 434 Sutherland Shire Council v Heyman (1985) 157 CLR 424 Vakauta v Kelly (1989) 167 CLR 568 Waverley Council v Lodge [2001] NSWCA 439 Webb v The Queen (1994) 181 CLR 41
PARTIES:	Suppachai Chotiputhsilpa by his tutor Supparek Chotiputhsilpa (Appellant) George Allan Waterhouse (First Respondent) Roads and Traffic Authority of New South Wales (Second Respondent)
FILE NUMBER(S):	CA 40122/2004
COUNSEL:	B.J. Gross QC/S.B. Dixon (Appellant) D.F. Rofe QC/B. Hull (First Respondent) I.G. Harrison SC/W.S. Reynolds (Second Respondent)
SOLICITORS:	Tim Young & Associates (Appellant) Malcolm Johns & Company (First Respondent) Henry Davis York (Second Respondent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 3857/00
LOWER COURT JUDICIAL OFFICER:	Twigg DCJ