Crisp v Burridge - [2004] NSWCA 245

CITATION: Crisp v. Burridge [2004] NSWCA 245

HEARING DATE(S): 16 June 2004

JUDGMENT DATE:
21 July 2004

JUDGMENT OF: Sheller JA at 1; Hodgson JA at 2; Santow JA at 46

DECISION: 1. Appeal allowed. 2. Respondent to pay appellant's costs of the appeal, and to have a Suitors' Fund Certificate if otherwise eligible. 3. Orders below set aside. 4. Written submissions to be provided as to further orders to be made, by the appellant within 7 days and by the respondent within a further 7 days.

CATCHWORDS: APPEAL - Question of fact - Whether findings vitiated by errors - TORT - Negligence - Motor accident - Standard of care required of drivers.

CASES CITED: Cook v. Hawes [2002] NSWCA 79
Fox v. Percy (2003) 197 ALR 201
Mifsud v. Campbell (1991) 21 NSWLR 725
Pledge v. Roads & Traffic Authority (2004) 78 ALJR 572

PARTIES :
Cheree-Ann Crisp - appellant
Brett Michael Burridge - respondent

FILE NUMBER(S): CA 41135/03

COUNSEL: Mr. P. R. Arden SC for appellant
Mr. T.E.F. Hughes QC with Mr. T.D.F. Hughes for respondent

SOLICITORS: Ferguson Lawyers, Sydney for appellant
G.H. Healey & Co. Mascot for respondent

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC1856/01

LOWER COURT
JUDICIAL OFFICER : Karpin DCJ

CA 41135/03
DC 1856/01

SHELLER JA
HODGSON JA
SANTOW JA
Wednesday 21 July 2004

CRISP V. BURRIDGE

Judgment

1 SHELLER JA: I agree with Hodgson JA.

2 HODGSON JA: On 7 November 2003, Karpin DCJ gave judgment in the sum of $322,501.92 in favour of the respondent in motor accident proceedings brought by the respondent against the appellant, and made costs orders generally in favour of the respondent. The appellant appeals from that decision.

CIRCUMSTANCES

3 The proceedings arose out of a motor accident which occurred at about 9.30pm on 18 May 1999.

4 The respondent was walking in a northerly direction in Lakeview Drive, Terrigal, proceeding from Ocean View Drive towards the intersection with Minell Close. The road at this point was not kerbed and guttered, and there was no formed footpath: grass extended from house frontages to a gravel verge, and then there was a bitumen roadway about 8 metres wide. The respondent was walking either on his right side of the road, or on the grass or gravel verge on that side of the road. The appellant was driving in a southerly direction on the same stretch of road, initially at about 50-60kph. Her vehicle struck the respondent causing him substantial injuries.

5 As stated by the primary judge, the central issue at the trial was the position of the respondent at the time of the impact. The respondent said that he was not on the bitumen roadway; and the appellant said that he was.

6 Evidence concerning the circumstances of the accident was given by the respondent, the appellant, a passenger in the appellant’s car (Mr. Dybing), the driver of another car (Mrs. Hurst), and two police officers who attended after the accident (Senior Constable King and Probationary Constable…

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 Crisp v Burridge

Details

AGLC: Crisp v Burridge [2004] NSWCA 245
Case: [2004] NSWCA 245
Decision Date: 21 July 2004

CaseChat Overview and Summary

The appeal in *Crisp v Burridge* concerned a motor accident and the standard of care required of drivers. The appellant, Mr Crisp, appealed against the decision of the primary judge who had found him to be solely responsible for the accident. The appeal was heard in the Court of Appeal of New South Wales by Sheller, Hodgson and Santow JJA.

The central legal issue before the Court of Appeal was whether the primary judge's findings of fact, which led to the conclusion that Mr Crisp was negligent and solely liable for the accident, were vitiated by errors. This required the appellate judges to consider the evidence presented at trial and determine if the primary judge had applied the correct legal principles in assessing the conduct of the drivers involved.

The Court of Appeal found that the primary judge had erred in his findings of fact and in his application of the law. Consequently, the appeal was allowed, the orders of the primary judge were set aside, and the respondent was ordered to pay the appellant's costs of the appeal. The parties were directed to provide written submissions regarding further orders to be made.

Orders

Orders of the court

1. Appeal allowed. 2. Respondent to pay appellant's costs of the appeal, and to have a Suitors' Fund Certificate if otherwise eligible. 3. Orders below set aside. 4. Written submissions to be provided as to further orders to be made, by the appellant within 7 days and by the respondent within a further 7 days.

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:	Crisp v. Burridge [2004] NSWCA 245
HEARING DATE(S):	16 June 2004
JUDGMENT DATE:	21 July 2004
JUDGMENT OF:	Sheller JA at 1; Hodgson JA at 2; Santow JA at 46
DECISION:	1. Appeal allowed. 2. Respondent to pay appellant's costs of the appeal, and to have a Suitors' Fund Certificate if otherwise eligible. 3. Orders below set aside. 4. Written submissions to be provided as to further orders to be made, by the appellant within 7 days and by the respondent within a further 7 days.
CATCHWORDS:	APPEAL - Question of fact - Whether findings vitiated by errors - TORT - Negligence - Motor accident - Standard of care required of drivers.
CASES CITED:	Cook v. Hawes [2002] NSWCA 79 Fox v. Percy (2003) 197 ALR 201 Mifsud v. Campbell (1991) 21 NSWLR 725 Pledge v. Roads & Traffic Authority (2004) 78 ALJR 572
PARTIES :	Cheree-Ann Crisp - appellant Brett Michael Burridge - respondent
FILE NUMBER(S):	CA 41135/03
COUNSEL:	Mr. P. R. Arden SC for appellant Mr. T.E.F. Hughes QC with Mr. T.D.F. Hughes for respondent
SOLICITORS:	Ferguson Lawyers, Sydney for appellant G.H. Healey & Co. Mascot for respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC1856/01
LOWER COURT JUDICIAL OFFICER :	Karpin DCJ