Commonwealth of Australia v Ryan - [2002] NSWCA 372

CITATION: Commonwealth of Australia v Ryan [2002] NSWCA 372

FILE NUMBER(S): CA 40195/02

HEARING DATE(S): 13 November 2002

JUDGMENT DATE:
21 November 2002

PARTIES :

Commonwealth of Australia - Appellant
David William Ryan - Respondent

JUDGMENT OF: Beazley JA at 1; Giles JA at 2; Hodgson JA at 71

LOWER COURT JURISDICTION : Supreme Court - Common Law Division

LOWER COURT
FILE NUMBER(S) : CLD 20844/96

LOWER COURT
JUDICIAL OFFICER : Newman AJ

COUNSEL: R S McIlwaine SC & D J Brogan - Appellant
F M Douglas QC & W D H Walsh - Respondent

SOLICITORS: Australian Government Solicitor, Sydney - Appellant
James Taylor & Co, Myrtleford, Victoria - Respondent

CATCHWORDS: Damages - Melbourne/Voyager collision - plaintiff left Navy - claim for loss of pension entitlement - whether failure to direct jury as to loss of a chance - case not fought on that basis - fought as case of proof of loss on balance of probabilities - jury directed accordingly - no request for redirection - cannot now complain as to direction - whether open to jury to find loss of pension entitlement - on basis of proof of loss on balance of probabilities was open to jury - interest awarded by adoption of reasons in earlier case - whether failure to exercise discretion - adoption was exercise of discretion - whether error in exercise of discretion - no error identified or established. ND

CASES CITED:
Daniels v Anderson (1995) 37 NSWLR 438;
The Guildford [1956] p 364;
Haines v Bendall (1991) 172 CLR 60;
House v The King (1936) 55 CLR 499;
McLean v The Commonwealth of Australia (Sperling J, 22 August 1996);
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638;
Norris v Blake (No 2) (1997) 41 NSWLR 49;
Reynolds v Katoomba RSL All Services Club Ltd (2001) 53 NSWLR 43;
Ryan v The Commonwealth of Australia (1999) NSWSC 573;
Singleton v Ffrench (1986) 5 NSWLR 425;
Vardanega v Concrete & Terazzo Pty Ltd (CA, 22 October 1979, unreported);
Wenkart v Pitman (1998) 46 NSWLR 502.

DECISION: Appeal dismissed with costs.

CA 40195/02
CLD 20844/96

BEAZLEY JA
GILES JA
HODGSON JA
Thursday 21 November 2002

COMMONWEALTH OF AUSTRALIA v RYAN

Judgment

1 BEAZLEY JA: I agree with Giles JA.

2 GILES JA: The respondent enlisted in the Royal Australian Navy (“the Navy”) in July 1962, at the age of 17. He had left school at 15 and undertaken a motor mechanics apprenticeship, but did not complete the apprenticeship. He signed up for a 9 year engagement. He did his recruit training and became an Engineering Mechanic Class 2, of ordinary seaman ranking. He was serving on HMAS Melbourne at the time of the collision between HMAS Voyager and HMAS Melbourne on 10 February 1964.

3 In August 1996 the respondent brought proceedings against the appellant claiming damages for psychiatric injury and consequential physical impairments alleged to have been suffered as a consequence of the…

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: [2002] NSWCA 372
Decision Date: 21 November 2002

CaseChat Overview and Summary

The Commonwealth of Australia appealed to the Full Federal Court against a judgment awarded to Mr Ryan, a former member of the Royal Australian Navy. Mr Ryan had claimed damages for loss of pension entitlement arising from the collision between HMAS Melbourne and HMAS Voyager.

The primary legal issues before the Full Federal Court were whether the trial judge had erred in failing to direct the jury on the basis of loss of a chance, and whether it was open to the jury to find that Mr Ryan had proven his loss of pension entitlement on the balance of probabilities. Additionally, the Court considered whether the judge had erred in awarding interest by adopting the reasons from an earlier case, and whether this constituted a failure to exercise discretion or an error in its exercise.

The Court held that the case had not been fought on the basis of loss of a chance, but rather on the proof of loss on the balance of probabilities, and the jury had been directed accordingly. No request for redirection had been made at trial, meaning the Commonwealth could not now complain about the direction given. The Court found that it was open to the jury to find that Mr Ryan had proven his loss of pension entitlement on the balance of probabilities. Furthermore, the Court determined that the judge's adoption of reasons from an earlier case for the award of interest was an exercise of discretion, and no error in that exercise had been established.

Consequently, the appeal was dismissed with costs.

Orders

Orders of the court

Appeal 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:	Commonwealth of Australia v Ryan [2002] NSWCA 372
FILE NUMBER(S):	CA 40195/02
HEARING DATE(S):	13 November 2002
JUDGMENT DATE:	21 November 2002
PARTIES :	Commonwealth of Australia - Appellant David William Ryan - Respondent
JUDGMENT OF:	Beazley JA at 1; Giles JA at 2; Hodgson JA at 71

LOWER COURT JURISDICTION :	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	CLD 20844/96
LOWER COURT JUDICIAL OFFICER :	Newman AJ

COUNSEL:	R S McIlwaine SC & D J Brogan - Appellant F M Douglas QC & W D H Walsh - Respondent
SOLICITORS:	Australian Government Solicitor, Sydney - Appellant James Taylor & Co, Myrtleford, Victoria - Respondent
CATCHWORDS:	Damages - Melbourne/Voyager collision - plaintiff left Navy - claim for loss of pension entitlement - whether failure to direct jury as to loss of a chance - case not fought on that basis - fought as case of proof of loss on balance of probabilities - jury directed accordingly - no request for redirection - cannot now complain as to direction - whether open to jury to find loss of pension entitlement - on basis of proof of loss on balance of probabilities was open to jury - interest awarded by adoption of reasons in earlier case - whether failure to exercise discretion - adoption was exercise of discretion - whether error in exercise of discretion - no error identified or established. ND
CASES CITED:	Daniels v Anderson (1995) 37 NSWLR 438; The Guildford [1956] p 364; Haines v Bendall (1991) 172 CLR 60; House v The King (1936) 55 CLR 499; McLean v The Commonwealth of Australia (Sperling J, 22 August 1996); Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; Norris v Blake (No 2) (1997) 41 NSWLR 49; Reynolds v Katoomba RSL All Services Club Ltd (2001) 53 NSWLR 43; Ryan v The Commonwealth of Australia (1999) NSWSC 573; Singleton v Ffrench (1986) 5 NSWLR 425; Vardanega v Concrete & Terazzo Pty Ltd (CA, 22 October 1979, unreported); Wenkart v Pitman (1998) 46 NSWLR 502.
DECISION:	Appeal dismissed with costs.