Meagher JA at [1]; Leeming JA at [84]; Adamson J at [85]
Decision:
1. Appeal allowed.
2. Set aside the judgment entered, and order as to costs made, by the District Court on 4 June 2013.
3. Judgment for the appellant against the respondent for $37,343, that judgment to take effect on 4 June 2013.
4. If the parties cannot agree as to the orders for costs to be made, they are to file and serve written submissions addressing the costs of the appeal and in the court below, those submissions not to exceed six pages. The appellant's submissions are to be lodged with the Registrar and served by 30 January 2015. The respondent's submissions are to be lodged with the Registrar and served by 13 February 2015. These questions are to be determined on the papers.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
TORTS - negligence - whether breach of duty of care - whether contributory negligence - no issue of principle
TORTS - motor accidents - "blameless accident" - where accident or injury not caused by driver or owner's negligence - where contributory negligence - apportionment of responsibility - Motor Accidents Compensation Act 1999 (NSW), ss 7B, 7F, 138
TORTS - damages - assessment of damages - no issue of principle
[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
AGLC
Davis v Swift [2014] NSWCA 458
Case
[2014] NSWCA 458
Decision Date
CaseChat Overview and Summary
In *Davis v Swift*, the appellant, Davis, appealed to the Court of Appeal of New South Wales against a decision of the District Court concerning a motor accident. The dispute centred on the appellant's entitlement to damages following an accident where the respondent, Swift, was found not to be negligent.
The primary legal issues before the Court of Appeal were whether the District Court had erred in its assessment of damages, and whether the appellant was contributorily negligent. The case also involved consideration of the "blameless accident" provisions under the *Motor Accidents Compensation Act 1999* (NSW), specifically sections 7B and 7F, and the apportionment of responsibility under section 138.
The Court of Appeal found that the District Court had erred in its assessment of damages and in its finding of contributory negligence. The Court reasoned that the respondent's actions did not constitute negligence, but that the appellant was entitled to damages under the "blameless accident" provisions. The Court applied the principles of the *Motor Accidents Compensation Act 1999* (NSW) to determine the appellant's entitlement and the apportionment of responsibility.
The Court of Appeal allowed the appeal, set aside the judgment and costs order of the District Court, and entered judgment for the appellant against the respondent for $37,343, with that judgment to take effect on the date of the District Court's original judgment. The parties were directed to file written submissions regarding the costs of the appeal and the court below.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the judgment entered, and order as to costs made, by the District Court on 4 June 2013.
3. Judgment for the appellant against the respondent for $37,343, that judgment to take effect on 4 June 2013.
4. If the parties cannot agree as to the orders for costs to be made, they are to file and serve written submissions addressing the costs of the appeal and in the court below, those submissions not to exceed six pages. The appellant's submissions are to be lodged with the Registrar and served by 30 January 2015. The respondent's submissions are to be lodged with the Registrar and served by 13 February 2015. These questions are to be determined on the papers.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]