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Cochrane v Hannaford

Cochrane v Hannaford

Case [1999] NSWCA 371 8 October 1999

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CITATION: Cochrane & Anor v Hannaford [1999] NSWCA 371

FILE NUMBER(S): CA 40256/97

HEARING DATE(S): 8-9 June 1999

JUDGMENT DATE:
8 October 1999

PARTIES :

Peter Robert Cochrane
Joy Anne Cochrane
Peter Robert Cochrane
v
Ronald Ian Hannaford

JUDGMENT OF: Mason P; Brownie AJA; Foster AJA

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S) : CW 500014/94

LOWER COURT JUDICIAL OFFICER: Ireland J

COUNSEL: A: J Poulos QC, Ms CE Adamson
R: DGT Nock SC, P Regattieri

SOLICITORS: A: Abbott Tout, Sydney
R: MJ Duffy & Sons, Dubbo

CATCHWORDS: TORT - Personal injuries - Motor vehicle accident - Contributory negligence - Whether plaintiff in the circumstances acted reasonably regarding own safety - Unexpected events requiring urgent action - Plaintiff working below grader situated on banking - Reasonable to assume grader would be maintained safely in position; DAMAGES - Economic loss - Quantification - Cost of providing full time foreman appropriate measure of loss of earning capacity of plaintiff - Loss of opportunity of developing farm property - Son and mother partnership at will - Whether loss of future earning capacity calculated by reference to plaintiff’s share of partnership profits; DAMAGES - Interest on - Successful claim under Motor Accidents Act 1988 - Purpose and operation of s73 - Whether offer of settlement unreasonable - Whether at time offer made defendant not able to make reasonable assessment of plaintiff’s full entitlement to damages; JUDGMENTS & ORDERS - Courts and Judges - Statement of reasons for decision - Scope of - Judge’s duty to state reasons - Inferences to be drawn from absence of reasons - Whether relevant injustice or prejudice requiring decision be set aside

ACTS CITED: Motor Accidents Act 1988

DECISION: Appeal upheld in part, cross-appeal upheld

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40256/97
CW 500014/94

MASON P
BROWNIE AJA
FOSTER AJA

Friday 8 October 1999

Peter Robert COCHRANE & Anor
v Ronald Ian HANNAFORD

JUDGMENT

1 THE COURT: This is an appeal from a decision of a judge of the Common Law Division given on 11 April 1997. The proceedings were heard at Dubbo in September 1996 but the matter was not fully disposed of at those sittings. His Honour, the evidence being concluded, adjourned the proceedings to Sydney with a direction that written submissions should be provided by both parties. It appears that his Honour reached his decision after receipt of those submissions, without any further hearing taking place before him. His Honour entered judgment for the plaintiff against the defendants in the sum of $1,153,227.00 and ordered that the defendants pay the plaintiff s costs. The judgment sum was made up of several components to which reference will be made later in these reasons. As a result of steps taken earlier in the proceedings, before the hearing in Dubbo, the only issue in relation to liability was whether the plaintiff had been guilty of contributory negligence, an issue resolved in his favour. The appeal is brought…

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 Cochrane v Hannaford

Details

AGLC: Cochrane v Hannaford [1999] NSWCA 371
Case: [1999] NSWCA 371
Decision Date: 8 October 1999

CaseChat Overview and Summary

Cochrane v Hannaford concerned an appeal and cross-appeal from a judgment of the District Court of New South Wales following a motor vehicle accident. The plaintiff, Ms Cochrane, suffered personal injuries when a grader, which she was working beneath on a banking, moved unexpectedly. The defendant, Mr Hannaford, was the driver of the grader. The primary dispute revolved around whether Ms Cochrane had acted reasonably in her own safety and the quantification of her economic loss.

The Court of Appeal was required to determine several key legal issues. Firstly, it had to consider whether Ms Cochrane was contributorily negligent in the circumstances, particularly given the unexpected movement of the grader. Secondly, the court needed to assess the appropriate method for quantifying Ms Cochrane's economic loss, specifically whether the cost of a full-time foreman was the correct measure of her loss of earning capacity and whether her share of partnership profits was a relevant consideration for this calculation. Finally, the court was asked to consider the award of interest on damages under section 73 of the *Motor Accidents Act 1988* (NSW), including whether an earlier offer of settlement was unreasonable and whether the judge's reasons for decision were sufficient.

The Court of Appeal upheld the appeal in part and the cross-appeal in full. The court found that it was reasonable for Ms Cochrane to assume the grader would be maintained safely in position. Regarding economic loss, the court determined that the cost of providing a full-time foreman was an appropriate measure of the plaintiff's loss of earning capacity. The court also considered the loss of opportunity to develop the farm property, noting the partnership at will with her son and mother. The court's reasoning on the award of interest under s 73 of the *Motor Accidents Act 1988* (NSW) led to the upholding of the cross-appeal.

Orders

Orders of the court

Appeal upheld in part, cross-appeal upheld

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

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Citations

AGLC Citation

Cochrane v Hannaford [1999] NSWCA 371

Most Recent Citation

Bond v Cerruto [2003] QCA 219

Cases citing this decision · 7 of 7 shown

Merle Marie McMorrow v Todarello Pty Limited trading as the Fruit House Faulconbridge
[2014] NSWDC 75 Para 1

…In Cochrane v Hannaford [1999] NSWCA 371, replacement labor was dealt with as a recognised head of damage. Here it seems the only relevant factor in the assessment of past economic loss is the cost of hiring Mr George. To the extent that taxation would have been paid for Mr George, the family company would have had…
Barden v Seric
[2012] NSWSC 1480 Para 1

…hip structure between a husband and a wife has been settled by Husher v Husher [1999] HCA 47; 197 CLR 138 at 146-149; [14]-[23]. Cochrane v Hannaford [1999] NSWCA 371 (at [82]-[88]) was cited as an example of the application of the principles in Husher v Husher to the assessment of future economic loss in the conte…
Najdovski v Crnojlovic (No 2)
[2008] NSWCA 281

…Australian Insurance Ltd v Crazzi [2006] NSWSC 1090; 68 NSWLR 266 Cochrane v Hannaford [1999] NSWCA 371; 30 MVR 55 Fitzgerald v Dansey [2001] NSWCA 339; 35 MVR 86 Harrison v Melhem [2008] NSWCA 67; (2008) Aust Torts Rep 81-951 Kendirjian v Ayoub [2008] NSWCA 194 Najdovski v Crnojlovic [2008] NSWCA 175 Nicol v Ally…
Mastaglia v Burns
[2006] WASCA 190 Para 9

…ompany would have had to have paid an outside employee to perform the tasks actually performed by Mrs Minahan during 1992‑1993 … " Also see Cochrane v Hannaford (1999) 30 MVR 55, per Mason P, Brownie and Foster AJJA, at 75 ‑ 77 [84] ‑ [88].…
Westrac Equipment Pty Ltd v King
[2004] WASCA 188 Para 1

…yd v Faraone [1989] WAR 154; Stojkovski v Fitzgerald [1989] WAR 328; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 (CA); Cochrane v Hannaford (1999) 30 MVR 55 (NSW CA) and Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149 at [26] to [29]. The giving of reasons is a nor…
Bond v Cerruto
[2003] QCA 219

…Beale v Government Insurance Officer of New South Wales (NSW) (1997) 48 NSWLR 430, cited Cochrane v Hannaford [1999] NSWCA 371, referred to COUNSEL: R Trotter for the appellant G Mullins for the respondents SOLICITORS: Richardson McGhie for the appellant McInnes Wilson for the respondents…
Veloskey v Karagiannakis
[2002] NSWADTAP 18

…6 Sullivan v. Department of Transport (1978) 20 A.L.R.323 The Repatriation Commission v O’Brien (1984-1985) 155 CLR 422 Cochrane & Anor v Hannaford [1999] NSWCA 371 Athens & Anor v Randwick City Council [2002] NWCA 83 Harou-Sourdon v TCN Channel Nine Pty Ltd [1994] EOC 92-604 Wagga Wagga Aboriginal Action Group v E…

View all 7 citing cases →

Cases cited in this decision · 16 of 16 shown

Husher v Husher
[1999] HCA 47

…idered by the High Court in Husher v Husher [1999] HCA 47. In the majority decision (Gleeson CJ, Gummow, Kirby and Hayne JJ) it is said that "if the decision in Seymour v Gough was intended to establish some principle that a plaintiff, who at the time of the accident was a partner in a business, can never recove…
Oshlack v Richmond River Council
[1998] HCA 11

…ging litigants to give serious consideration to the settlement of proceedings. The function of such provisions is discussed in Morgan v Johnson (1998) 44 NSWLR 578 at 581-2. Mason P was there speaking of familiar provisions found in the Supreme Court Rules and District Court Rules which indicate that the usual order f…
Burnie Port Authority v General Jones Pty Ltd
[1994] HCA 13

…ere carried out. Authorities such as Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 and Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 were relied upon to underpin a submission that Mr Hannaford was a victim of a failure on his own part to provide a safe system of work and that his duty…
Stevens v Brodribb Sawmilling Co Pty Ltd
[1986] HCA 1

…n control of the grader and as to ensuring that those instructions were carried out. Authorities such as Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 and Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 were relied upon to underpin a submission that Mr Hannaford was a victim of a failur…
Jones v Schiffmann
[1971] HCA 52

…ssarily involved something approaching guesswork, rather than estimation as to future events. And see also Jones v Schiffmann 124 CLR 303 at 308 where Menzies J in considering damages recoverable by a widow in a Lord Campbell's Act claim said: The assessment of damages, whether by a judge or a jury, does somet…
Ramsay v Watson
[1961] HCA 65

…thout objection. It was argued but faintly before us that findings in the report were inadequately supported by evidence, Ramsay v Watson (1961) 108 CLR 642 being relied upon in this regard. This assertion was not developed in argument. A reading of the whole of Mr Hannaford's evidence indicates that the opinions of…
Graham v Baker
[1961] HCA 48

…a loss of earning capacity, he had nevertheless failed to show that this had resulted in any financial loss ( Graham v Baker (1961) 106 CLR 340; Medlin v State Government Insurance Commission (1994-95) 182 CLR 1). In the appellants' written submissions to his Honour, and also in this appeal, the point was made in va…
Public Service Board of NSW v Osmond
[1986] HCA 7

…with the judicial obligation to give reasons ". His Honour said (at 728): In Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, the High Court (at 667) said that it was the right to describe the giving of reasons as 'an incident of the judicial process' although a normal but not a universal one. In…
Medlin v State Government Insurance Commission
[1995] HCA 5

…resulted in any financial loss ( Graham v Baker (1961) 106 CLR 340; Medlin v State Government Insurance Commission (1994-95) 182 CLR 1). In the appellants' written submissions to his Honour, and also in this appeal, the point was made in various ways. It was said that " the plaintiffs injuries have meant th…
(1983) 2 AC 309
(1983) 2 AC 309

…t aside or, as Lord Scarman said, merely salute it in passing: R v Barnet London Borough Council , Ex parte Nilish Shah (1983) 2 AC 309 at 350. 74 In our opinion, it is quite clear that the obligation to provide reasons and also the extent of those reasons when provided, must depend very much upon the circumstance…
19771 NZLR 630
19771 NZLR 630

…'disappointed' but 'disturbed' - to use the words which appear in the New Zealand case of Connell v Auckland City Council [19771 NZLR 630 at 634. It tends to deny both the fact and the appearance of justice having been done. If it does … then it will have worked a miscarriage of justice and have produced a mis-t…
1 WLR 1722
1 WLR 1722

…; Ward v Newalls Insulation Co Ltd [ 1 9981 1 WLR 1722.) 87 Authority in Queensland had favoured the position that the assessment of damages payable to an injured partner must reflect his or her entitlement to partnership profits at the time of the accident. ( Seymour v Gough [1996] 1 QdR 89; Hoskins v Hoskin…
Soulemezis v Dudley (Holdings) Pty Ltd
(1987) 10 NSWLR 24

…ight to describe the giving of reasons as 'an incident of the judicial process' although a normal but not a universal one. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 274, McHugh JA (at 278) makes some comments upon that holding, and goes on to say (at 281) that the failure to explain the basis of a crucial finding of fact involv…
Mifsud v Campbell
(1991) 21 NSWLR 725

…er the law in relation to the requirement that a judge give reasons for his decision. 67 This topic received consideration in Mifsud v Campbell (1991) 21 NSWLR 725. Samuels JA considered " authorities which deal with the judicial obligation to give reasons ". His Honour said (at 728): In Public Service Board of New South W…
Beale v Government Insurance Office of NSW
(1997) 48 NSWLR 430

…o state his or her reasons for deciding does not exist in respect of every matter which is raised in proceedings ". 69 In Beale v Government Insurance Office (NSW) (1997) 25 MVR 373, the topic was visited in some detail by Meagher JA. It is convenient to refer to some portions only of his Honour's judgment. Thus, his Honour said (at 383): A failu…
Public Service Board of New South Wales v Osmond
(1986) 159 CLR 616

…. Samuels JA considered " authorities which deal with the judicial obligation to give reasons ". His Honour said (at 728): In Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, the High Court (at 667) said that it was the right to describe the giving of reasons as 'an incident of the judicial process' although a normal but not a univer…

Legislation cited in this decision · 1

Motor Accidents Act 1988 (NSW)
1 mention

CITATION:	Cochrane & Anor v Hannaford [1999] NSWCA 371
FILE NUMBER(S):	CA 40256/97
HEARING DATE(S):	8-9 June 1999
JUDGMENT DATE:	8 October 1999
PARTIES :	Peter Robert Cochrane Joy Anne Cochrane Peter Robert Cochrane v Ronald Ian Hannaford
JUDGMENT OF:	Mason P; Brownie AJA; Foster AJA

LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	CW 500014/94
LOWER COURT JUDICIAL OFFICER:	Ireland J

COUNSEL:	A: J Poulos QC, Ms CE Adamson R: DGT Nock SC, P Regattieri
SOLICITORS:	A: Abbott Tout, Sydney R: MJ Duffy & Sons, Dubbo
CATCHWORDS:	TORT - Personal injuries - Motor vehicle accident - Contributory negligence - Whether plaintiff in the circumstances acted reasonably regarding own safety - Unexpected events requiring urgent action - Plaintiff working below grader situated on banking - Reasonable to assume grader would be maintained safely in position; DAMAGES - Economic loss - Quantification - Cost of providing full time foreman appropriate measure of loss of earning capacity of plaintiff - Loss of opportunity of developing farm property - Son and mother partnership at will - Whether loss of future earning capacity calculated by reference to plaintiff’s share of partnership profits; DAMAGES - Interest on - Successful claim under Motor Accidents Act 1988 - Purpose and operation of s73 - Whether offer of settlement unreasonable - Whether at time offer made defendant not able to make reasonable assessment of plaintiff’s full entitlement to damages; JUDGMENTS & ORDERS - Courts and Judges - Statement of reasons for decision - Scope of - Judge’s duty to state reasons - Inferences to be drawn from absence of reasons - Whether relevant injustice or prejudice requiring decision be set aside
ACTS CITED:	Motor Accidents Act 1988
DECISION:	Appeal upheld in part, cross-appeal upheld