NEW SOUTH WALES COURT OF APPEAL
CITATION: Coombes v Roads and Traffic Authority & Ors [2006] NSWCA 229
FILE NUMBER(S):
40744/05
HEARING DATE(S): 17 & 19 May 2006
DECISION DATE: 17/08/2006
PARTIES:
Anne Marie Coombes (Appellant)
Roads & Traffic Authority (First Respondent)
Bombala Council (Second Respondent)
Stephen John Frece (Third Respondent)
JUDGMENT OF: Beazley JA Ipp JA Basten JA
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 2269/02
LOWER COURT JUDICIAL OFFICER: Armitage DCJ
COUNSEL:
H J Marshall SC; E Beilby (Appellant)
D T Miller (First Respondent)
D Davies SC; N Polin (Second Respondent)
W Fitzsimmons; C Mulvey (Third Respondent)
SOLICITORS:
Beilby Poulden Costello (Appellant)
Moray & Agnew (First Respondent)
Phillips Fox (Second Respondent)
QBE Insurance Limited (Third Respondent)
CATCHWORDS:
NEGLIGENCE – causation – failure of trial judge to appreciate extent of claim – failure of trial judge to appreciate evidence presented – findings on causation wrong in law
CONTRIBUTORY NEGLIGENCE – appellant not contributorally negligent
JUDGMENT – findings on causation based on credit finding – credit finding misplaced – appellate intervention not warranted
JUDGMENT – failure to deal with aspect of appellant’s submission – no substantial wrong or miscarriage – appellate intervention not warranted
LEGISLATION CITED:
Roads Act 1993 (NSW) ss 7(4), 61(1)(a), 145(3), 207
Supreme Court Rules 1970 (NSW) Pt 51 r 23
DECISION:
1. Appeal allowed in part and dismissed in part
2. Set aside the verdict for the second respondent (Bombala Council)
3. Verdict and judgment for the appellant against the second respondent (Bombala Council), for damages in an amount to be assessed
4. As against the second respondent (Bombala Council), remit the matter to the District Court for rehearing, limited to damages
5. Otherwise confirm the verdicts in favour of the first and third respondents (the RTA and Frece)
6. In respect of the claim between the appellant and the second respondent (Bombala Council), order the second respondent to pay the appellant’s costs of the appeal and at first instance
7. Order the appellant to pay the third respondent’s (Frece’s) costs of the appeal
8. The appellant and the first and second respondents (the RTA and Bombala Council) are to file written submissions as to the costs of the first respondent at trial and on appeal.
JUDGMENT:
- 18 -
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40744/05
BEAZLEY JA
IPP JA
BASTEN JA17 August 2006
ANNE MARIE COOMBES
v
ROADS AND TRAFFIC AUTHORITY & ORS
Headnote
Facts
The appellant was injured when her vehicle collided with a vehicle being driven by the third respondent. The accident took place on a two-way portion of the old Monaro Highway which was being used as a detour while the second respondent, under contract with the first respondent, was carrying out road works on the new section of the Highway. The appellant had been driving southbound along the Highway and was of the belief that the detour was one-way.
The appellant brought proceedings against each of the respondents alleging negligence…
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- Case
- [2006] NSWCA 229
- Decision Date
CaseChat Overview and Summary
The legal issues before the appellate court were whether the trial judge erred in his findings on causation, whether those findings were based on a misapprehension of the evidence, and whether the appellant was contributorily negligent. The appellant argued that the trial judge's findings on causation were wrong in law and that his credit finding, which underpinned the causation finding, was misplaced. The court was also required to consider whether appellate intervention was warranted and to determine the appropriate orders, including the allocation of costs.
The appellate court found that the trial judge's interpretation of the appellant's statements was flawed. Specifically, the court noted that the trial judge had failed to appreciate the full extent of the appellant's claim and the evidence presented, particularly the appellant's later, more detailed statement to the VTAC. This statement indicated that signs gave her the impression she was entering a one-way track and that she never saw signs indicating a two-way section. The court concluded that the trial judge's credit finding was misplaced and that his findings on causation were wrong in law. However, the court also considered whether a substantial wrong or miscarriage of justice had occurred, and whether appellate intervention was warranted.
The appeal was allowed in part and dismissed in part. The verdict for Bombala Council was set aside, and a verdict and judgment were entered for the appellant against Bombala Council for damages to be assessed. The matter was remitted to the District Court for a rehearing limited to damages against Bombala Council. The verdicts in favour of the RTA and Frece were confirmed. Bombala Council was ordered to pay the appellant's costs of the appeal and at first instance. The appellant was ordered to pay Frece's costs of the appeal. Written submissions were to be filed regarding the costs of the RTA at trial and on appeal.
Orders
Orders of the court
1. Appeal allowed in part and dismissed in part; 2. Set aside the verdict for the second respondent (Bombala Council); 3. Verdict and judgment for the appellant against the second respondent (Bombala Council), for damages in an amount to be assessed; 4. As against the second respondent (Bombala Council), remit the matter to the District Court for rehearing, limited to damages; 5. Otherwise confirm the verdicts in favour of the first and third respondents (the RTA and Frece); 6. In respect of the claim between the appellant and the second respondent (Bombala Council), order the second respondent to pay the appellant's costs of the appeal and at first instance; 7. Order the appellant to pay the third respondent's (Frece's) costs of the appeal; 8. The appellant and the first and second respondents (the RTA and Bombala Council) are to file written submissions as to the costs of the first respondent at trial and on appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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