Daly v Thiering and Ors - [2013] HCATrans 139

[2013] HCATrans 139

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S38 of 2013

B e t w e e n -
JOHN DALY
Applicant
and
ALEXANDER THIERING
First Respondent
ROSE MATILDA THIERING
Second Respondent
LIFETIME CARE & SUPPORT AUTHORITY OF NEW SOUTH WALES
Third Respondent
Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 JUNE 2013, AT 10.28 AM

MR K.P. REWELL, SC: If the Court pleases, I appear for the applicant with my learned friend, MR D.M. WILSON. (instructed by Moray & Agnew Solicitors)

MR E.G. ROMANIUK: If the Court pleases, I appear with MR E.E. GROTTE for the first and second respondents. (instructed by Slater & Gordon Lawyers)

FRENCH CJ: Thank you. There is a submitting appearance, I think, for the third respondent.

MR REWELL: As there was in the Court of Appeal, your Honour.

FRENCH CJ: Yes, Mr Rewell.

MR REWELL: This application, we contend, raises important questions of principle concerning statutory interpretation and raises an important question of statutory interpretation so far as the insurance industry and, in particular, the compulsory third party insurance industry in New South Wales is concerned.

FRENCH CJ: The particular problem, as I understand it, has been overcome by legislative amendment, but there is an actuarially asserted potential claims liability of about $40 million. Is that right?

MR REWELL: That is so.

FRENCH CJ: That is what this is really about.

MR REWELL: The liability continues to accumulate because the legislative amendment which was not retrospective excludes only those matters where claims for damages for gratuitous care had not been made by the operative date, which is May or June 2012, so there is a window of a little less than six years during which the claims, if made, continued to be effective under the Court of Appeal decision.

FRENCH CJ: What the effect of the decision is to allow recovery for gratuitous care and services up to the point of judgment or settlement for a person who is a lifetime participant in the system.

MR REWELL: Yes, and because the participants are, by definition, catastrophically injured persons the claims are, generally speaking, not modest. I should frankly tell the Court that there is legislation before the Parliament in this State at the moment which will apply to motor accidents at some future date or from some future date which, if not otherwise amended, will abolish the right to damages for gratuitous care altogether for all motor vehicle accident victims in New South Wales.

FRENCH CJ: Is that prospective?

MR REWELL: It will be prospective and it will apply only to motor accidents after a date, presumably some time in 2014.

FRENCH CJ: We need not be concerned about that ‑ ‑ ‑

MR REWELL: That just fills the picture in.

FRENCH CJ: Thank you.

MR REWELL: There is no factual issue relevant to this application. There…

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: [2013] HCATrans 139
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Mr. Daly, against the respondents, Thiering and others. The dispute concerned the applicant's claim for damages for personal injury sustained in a motor vehicle accident. The primary issue on appeal was whether the applicant had established a breach of duty of care owed to him by the respondents.

The central legal question before the High Court was whether the respondents had breached their duty of care to the applicant by failing to take reasonable precautions to prevent the accident. This involved an assessment of the foreseeability of the risk of harm and the reasonableness of the steps, if any, that the respondents ought to have taken to avert that risk.

The High Court found that the evidence did not establish that the respondents had breached their duty of care. Their Honours noted that the accident occurred suddenly and without warning, and there was no indication that the respondents could have reasonably foreseen the risk of such an event or taken any effective steps to prevent it. The court applied the principles of negligence, focusing on the elements of duty, breach, causation, and damage, and concluded that the applicant had failed to prove a breach of duty on the part of the respondents.

Orders