BETWEEN: PETER JOHN CRAYDEN as Executor of the Estate of Sandra Irene Farnworth
Appellant
AND
GIUSEPPE OTTAVIANO
GIUSEPPINA LEDA OTTAVIANO
Respondents

Catchwords:

Negligence - Personal injuries - Default judgment for plaintiff - Judgment set aside - Death of plaintiff before assessment of damages and before judgment set aside - Relative importance of prejudice and defence on merits when setting aside default judgment - Whether irreparable prejudice from plaintiff being unable to prove case - Relevance of delay in issuing proceedings - Whether defendant sending writ to insurers was reasonable response in all the circumstances

Legislation:

Evidence Act 1906 (WA), ss 79C, 79D

Law Reform (Miscellaneous Provisions) Act 1941 (WA), s 4

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr I A Morison
Respondents : Mr P P McCann

Solicitors:

Appellant: Hoffmans
Respondents : Crisp Civitella Smith

Case(s) referred to in judgment(s):

Attwood v Chichester (1878) 3 QBD 722
National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd R 441
Phillips v Homfray (1883) 24 Ch D 439
Ryan v Davies Brothers Ltd (1921) 29 CLR 527

Case(s) also cited:

Nil

MURRAY J: I agree with Templeman J that, for the reasons to be given by his Honour, to which I have nothing to add, the appeal should be dismissed.
TEMPLEMAN J: The appellant is the executor of the late Sandra Irene Farnworth, ("the plaintiff") who claimed to have been injured at the respondent's restaurant in Northbridge, on 2 January 1994, when she slipped and fell.
The plaintiff brought an action against the respondents in the District Court, by a writ indorsed with a claim:
"for damages for personal injuries … which injuries were caused by the negligence of the (respondents) and/or through the (respondents') breach of their duties under the Occupiers Liability Act 1985 as amended."
Although the accident happened in 1994, the action was not commenced until July 1999. The writ was served on 30 October 1999.
On 14 December 1999, the plaintiff entered judgment against the respondents, in default of appearance. It is not disputed that the judgment was obtained regularly, due notice having been given to the respondents.
On 25 January 2000, the plaintiff died, from causes unrelated to her alleged injury, and before her damages had been assessed.
On 18 January 2002, the default judgment was set aside by a District Court Judge, allowing an appeal from a Registrar, who had declined to make such an order.
The appellant now appeals against the order of the learned District Court Judge. The respondent, by Notice of Contention, contends that the Judge's decision should be affirmed on additional grounds.

The decision of the District…

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 Crayden v Ottaviano

Details

AGLC: Crayden v Ottaviano [2003] WASCA 20
Case: [2003] WASCA 20
Decision Date: 26 FEBRUARY 2003

CaseChat Overview and Summary

The case of Crayden v Ottaviano involved a plaintiff seeking damages for personal injuries suffered as a result of the defendant's alleged negligence. After the plaintiff obtained a default judgment, the defendant applied to have the judgment set aside. However, the plaintiff died before the assessment of damages and before the judgment was set aside. The court was required to determine whether the judgment should be set aside, considering the relative importance of the prejudice to the plaintiff and the merits of the defendant's defence. The court also considered the relevance of the delay in issuing proceedings and whether the defendant's actions in sending the writ to the plaintiff's insurers was a reasonable response in all the circumstances.

The court found that the death of the plaintiff before the assessment of damages and before the judgment was set aside constituted irreparable prejudice, which weighed heavily in favour of setting aside the default judgment. The court held that the defendant's delay in issuing proceedings did not necessarily preclude setting aside the default judgment, as the defendant had a reasonable excuse for the delay. The court also found that the defendant's actions in sending the writ to the plaintiff's insurers was a reasonable response in all the circumstances, as it was an attempt to notify the party responsible for paying the damages.

Ultimately, the court set aside the default judgment in favour of the plaintiff, finding that the defendant had established a reasonable excuse for the delay in issuing proceedings and that the defendant's actions in sending the writ to the plaintiff's insurers was a reasonable response in all the circumstances. The court held that the relative importance of the prejudice to the plaintiff and the merits of the defendant's defence favoured setting aside the default judgment. No further orders were made by the court.

Orders