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Davis v Swift

Davis v Swift

Case [2013] NSWDC 99 4 June 2013

Duty of Care

Negligence

Contributory Negligence

Admissibility of Evidence

Tort Law

Civil Litigation & Procedure

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District Court

New South Wales

Medium Neutral Citation: Davis v Swift [2013] NSWDC 99
Hearing dates: 7, 8 and 9 May 2013
Decision date: 04 June 2013
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Judgment for the defendant.
(2) Plaintiff pay defendant's costs.
(3) Liberty to restore in relation to costs.
(4) Exhibits retained for 28 days.

Catchwords: PERSONAL INJURY - Pedestrian crossing to the middle of a busy roadway runs backwards without looking - collision with car about to leave the kerb - whether breach of duty of care - contributory negligence - "blameless accident" (s 7B Motor Accidents Compensation Act 1999 (NSW))
PRACTICE AND PROCEDURE - admissibility of surveillance film (UCPR r 31.10) - tender opposed on the basis of failure to disclose prior to trial - whether forensic purpose demonstrated - surveillance film admitted into evidence
Legislation Cited: Civil Liability Act 2002 (NSW), ss 5D(1)(a) and 5E
Motor Accidents Compensation Act 1999 (NSW), s 7B
Uniform Civil Procedure Rules 2004 (NSW), r 31.10
Cases Cited: Australian Postal Corporation v Bessey [2001] FCA 266
Axiak v Ingram [2012] NSWCA 311
Derrick v Cheung (2001) 181 ALR 301
Goodsell v Murphy (2002) 36 MVR 408
Griffiths v Kerkemeyer (1977) 139 CLR 161
Halpin v Lumley General Insurance Ltd [2009] NSWCA 372
Harrison v Melhem (2008) 72 NSWLR 380
Henderson v McLean [2007] NSWDC 199
Hill v Forrester [2010] NSWCA 170
Jaber v Rockdale City Council (2008) Aust Torts Reports Â¶81-952
Jarzebski v Jiminez [2006] NSWCA 104
Jones v Bradley [2003] NSWCA 81
Ma v Keane [2003] NSWCA 50
Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Manley v Alexander [2005] HCA 79
Tsuji v Metromix Pty Ltd (1998) 28 MVR 401
Yates v Jones (1990) Aust Torts Reports 81-009
Yip v Zreika (2001) 35 MVR 305
Texts Cited: -
Category: Principal judgment
Parties: Plaintiff: Carolyn Davis
Defendant: Deborah Swift
Representation: Plaintiff: Mr G Dilworth
Defendant: Mr P Cummings
Plaintiff: Brazel Moore Lawyers
Defendant: Moray & Agnew

File Number(s): 2009/332923
Publication restriction: None

Judgment

The plaintiff by Amended Statement of Claim filed on 10 April 2013 brings proceedings for damages for the circumstances in which she suffered injuries as a pedestrian on 20 March 2009, on the roadway in Vincent Street, Cessnock NSW.

The particulars of negligence, which are relevant to the principal claim and not to the "blameless accident" claim brought in the alternative under s 7B Motor Accidents Compensation Act 1999 (NSW) ("the Act"), are as follows:

(a) Failure to keep a proper lookout;

(b) Failure to avoid a collision;

(d) Failure to brake or swerve in order to avoid collision;

(e) Failure to take reasonable care for the safety of pedestrians.

The plaintiff suffered the following injuries and continuing disabilities:

(a) Fractures to right leg;

(b) Injury to right foot;

(d) Anxiety and depression.

The issues for determination

The issues for determination are:

(a) The plaintiff brings proceedings for damages in negligence and,…

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 Davis v Swift

Details

AGLC: Davis v Swift [2013] NSWDC 99
Case: [2013] NSWDC 99
Decision Date: 04 June 2013

CaseChat Overview and Summary

In the case of Davis v Swift, the plaintiff, Davis, brought an action against the defendant, Swift, for damages arising from a motor vehicle accident. Davis alleged that Swift was negligent in driving a car that collided with him when he ran into the middle of the road without looking, causing personal injuries. The case was heard in the Supreme Court of New South Wales. The primary issues before the court were whether Swift breached a duty of care, whether Davis was contributory negligent, and if the accident could be characterised as a "blameless accident" under section 7B of the Motor Accidents Compensation Act 1999 (NSW). Additionally, the court had to determine the admissibility of a surveillance film tendered by the plaintiff under rule 31.10 of the Uniform Civil Procedure Rules 2005 (NSW).

The court examined the circumstances of the accident and concluded that Swift did not breach any duty of care owed to Davis. The court found that Davis's actions in running into the middle of the road without looking constituted a significant contributory factor to the collision. Furthermore, the court held that the accident did not meet the criteria of a "blameless accident" under the Motor Accidents Compensation Act, as it was not solely attributable to an unforeseen event beyond Davis's control. Regarding the surveillance film, the court accepted that its probative value outweighed any prejudicial effect, and it was therefore admitted into evidence despite the late disclosure by the plaintiff.

Consequently, the court entered judgment in favour of Swift, dismissing Davis's claims. The plaintiff was ordered to pay the defendant's costs. The court granted liberty to restore in relation to the costs, and the exhibits were retained for 28 days. The decision highlights the importance of considering both duty of care and contributory negligence in personal injury claims, as well as the application of statutory provisions in determining compensation eligibility.

Orders

Orders of the court

(1) Judgment for the defendant.

(2) Plaintiff pay defendant's costs.

(3) Liberty to restore in relation to costs.

(4) Exhibits retained for 28 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Davis v Swift [2013] NSWDC 99

Most Recent Citation

Davis v Swift [2014] NSWCA 458

Cases Citing This Decision

Davis v Swift (No 2) [2015] NSWCA 137
Citation 1

…oray & Agnew (Respondent) File Number(s): 2013/200886 Decision under appeal Court or tribunal: District Court of NSW Citation: [2013] NSWDC 99 Date of Decision: 4 June 2013 Before: Gibson DCJ File Number(s): 2009/332923…
Davis v Swift [2014] NSWCA 458
Citation 2 (Para 1)

…The primary judge (Gibson DCJ) rejected the appellant's claim: Davis v Swift [2013] NSWDC 99. She held that the respondent was not negligent; that if the respondent were liable in negligence, the appellant's damages should be reduced by 100 per cent by reason of her contributory negligence; that the accident was a…

See all citing cases →

Cases Cited

Axiak v Ingram [2012] NSWCA 311
Citation 1

…1999 (NSW), s 7B Uniform Civil Procedure Rules 2004 (NSW), r 31.10 Cases Cited: Australian Postal Corporation v Bessey [2001] FCA 266 Axiak v Ingram [2012] NSWCA 311 Derrick v Cheung (2001) 181 ALR 301 Goodsell v Murphy (2002) 36 MVR 408 Griffiths v Kerkemeyer (1977) 139 CLR 161 Halpin v Lumley General Insurance L…
Hill v Forrester [2010] NSWCA 170
Citation 2 (Para 1)

…There must be an award for attendant care services provided for six hours per week for six months consecutively ( Hill v Forrester [2010] NSWCA 170).…
Halpin v Lumley General Insurance Ltd [2009] NSWCA 372
Citation 3 (Para 1)

…ostal Corporation v Bessey [2001] FCA 266; Jaber v Rockdale City Council (2008) Aust Torts Reports ¶81-952 and Halpin v Lumley General Insurance Ltd [2009] NSWCA 372.…
Jaber v Rockdale City Council [2008] HCATrans 309
Citation 4 (Para 1)

…itted to be tendered notwithstanding no prior notice being given to the party are discussed in Australian Postal Corporation v Bessey [2001] FCA 266; Jaber v Rockdale City Council (2008) Aust Torts Reports ¶81-952 and Halpin v Lumley General Insurance Ltd [2009] NSWCA 372.…
Harrison v Melhem [2008] NSWCA 67
Citation 5 (Para 1)

…alth, drug use or unrelated physical injuries, there are real difficulties in assessing the likely sum for future economic loss. In Harrison v Melhem (2008) 72 NSWLR 380, the trial judge considered that the plaintiff's earning capacity in circumstances where there was a 15 year history of prior drug use meant that the…
Shayne Henderson v Darren McLean (Taree) [2007] NSWDC 199
Citation 6 (Para 1)

…Decisions in this court have also considered this issue. In Henderson v McLean [2007] NSWDC 199, the plaintiff had 22 years of working life as an adult, during only two of which she had actually worked. She was awarded a sum representing employment for 3.5 out of the following 22 years. From this sum, 15% was deduc…
Jarzebski v Jiminez [2006] NSWCA 104
Citation 7 (Para 1)

…the onus of proof. The plaintiff must establish that the defendant had the opportunity to see the plaintiff and failed to do so ( Jarzebski v Jiminez [2006] NSWCA 104 at [19]-[22]). In addition, as the plaintiff moved backwards from a position in which she was either outside the scope of the defendant's vision or o…
Manley v Alexander [2005] HCA 79
Citation 8 (Para 1)

…uires a driver to pay reasonable attention to all that is happening on and near the roadway that may presents a source of danger ( Manley v Alexander [2005] HCA 79 at [11]), the touchstone remains what is reasonable.…
Joslyn v Berryman [2003] HCA 34
Citation 9

…[87] In my view one obtains some guidance as to the appropriate approach from what was said by McHugh J in Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 at [34] where his Honour referred to…
Jones v Bradley [2003] NSWCA 81
Citation 10 (Para 1)

…rgery in 2011. It is difficult to ascertain what kind of economic loss this entails. The figure of $240 a week is largely artificial: Jones v Bradley [2003] NSWCA 81 at [194]. It is my view that the appropriate course to take is to award a lump sum for past economic loss of $10,000, on the basis that the plaintiff…
Ma v Keane [2003] NSWCA 50
Citation 11 (Para 1)

…The facts in this case are similar to "darting out" cases ( Derrick v Cheung (2001) 181 ALR 301 at 305). In Ma v Keane [2003] NSWCA 50 at [23], the court noted that in many of the cases where a driver had been found to be liable, some actual behaviour of a plaintiff observed by the defendant driver may alert him o…
Goodsell v Murphy [2002] NSWCA 216
Citation 12 (Para 1)

…of their life, which was considered "fanciful" (at [195]), citing Yip v Zreika (2001) 35 MVR 305. Awards of this nature had been set aside on appeal: Goodsell v Murphy (2002) 36 MVR 408; Yates v Jones (1990) Aust Torts Reports 81-009.…
Yip v Zreika [2001] NSWCA 446
Citation 13 (Para 1)

…ion that a person even with a poor employment record would be employed for the rest of their life, which was considered "fanciful" (at [195]), citing Yip v Zreika (2001) 35 MVR 305. Awards of this nature had been set aside on appeal: Goodsell v Murphy (2002) 36 MVR 408; Yates v Jones (1990) Aust Torts Reports 81-009.…
Derrick v Cheung [2001] HCA 48
Citation 14

…[11] In Derrick v Cheung ( 2001) 181 ALR 301 at 305 the High Court remarked that Stocks v Baldwin depended on its own facts. "What was unlikely in this case was that an unattended infant of such tender years would dart in front of a relatively slow moving vehicle on a busy road in such a way that a collision w…
Australian Postal Corporation v Bessey [2001] FCA 266
Citation 15 (Para 1)

…film may be permitted to be tendered notwithstanding no prior notice being given to the party are discussed in Australian Postal Corporation v Bessey [2001] FCA 266; Jaber v Rockdale City Council (2008) Aust Torts Reports ¶81-952 and Halpin v Lumley General Insurance Ltd [2009] NSWCA 372.…
Stocks v Baldwin [1996] NSWCA 1
Citation 16

…[9] More recently in Stocks v Baldwin (1996) 24 MVR 416 Mahoney P stressed that the reasonable person would accept that it is not the duty of a driver so to drive that there is no foreseeable risk of injury to others, to think otherwise would be to ignore the realities of city life. However, four things need to be borne i…
Jones v Yates [1990] HCATrans 158
Citation 17 (Para 1)

…fanciful" (at [195]), citing Yip v Zreika (2001) 35 MVR 305. Awards of this nature had been set aside on appeal: Goodsell v Murphy (2002) 36 MVR 408; Yates v Jones (1990) Aust Torts Reports 81-009.…
Griffiths v Kerkemeyer [1977] HCA 45
Citation 18 (Para 1)

…The plaintiff claims $9,100 for past domestic care and assistance ( Griffiths v Kerkemeyer (1977) 139 CLR 161).…
Tsuji v Metromix Pty Ltd [1998] NSWSC 691
Citation 19 (Para 1)

…Sheller JA considered that the facts of Ma v Keane , supra , fell into a category described by Priestley JA in Tsuji v Metromix Pty Ltd (1998) 28 MVR 401 at 404 "where a driver is suddenly confronted with a pedestrian whom the driver had no prior reason to think might suddenly step in front of the vehicle. In that category of cas…
Trompp v Liddle (1941) 412 SR 108
Citation 20

…g and who have the appearance of normal adults will take normal precautions for their own safety, unless there is something to indicate the contrary: Trompp v Liddle (1941) SR 108."…
Trompp v Liddle (1941) SR 108
Citation 21

…he appearance of normal adults will take normal precautions for their own safety, unless there is something to indicate the contrary: Trompp v Liddle (1941) SR 108."…
Pty Ltd v Sprowles 636 F Supp 1419
Citation 22 (Para 1)

…ion as to why the plaintiff "may" require this operation is provided. Conformably with the principles set out by the Court of Appeal in Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705, I reject Dr Hellman's report, on the basis that the information upon which this opinion is based is not disclosed, nor is the reasoning…

Legislation Cited

Civil Liability Act 2002 (TAS) 5D(1)(a), 5E
3 mentions (from Para 1)
Motor Accidents Compensation Act 1999 (NSW) 7B
2 mentions (from Para 1)
Uniform Civil Procedure Rules 2004 (NSW) 31.10
2 mentions (from Para 1)

Medium Neutral Citation:	Davis v Swift [2013] NSWDC 99
Hearing dates:	7, 8 and 9 May 2013
Decision date:	04 June 2013
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Judgment for the defendant. (2) Plaintiff pay defendant's costs. (3) Liberty to restore in relation to costs. (4) Exhibits retained for 28 days.
Catchwords:	PERSONAL INJURY - Pedestrian crossing to the middle of a busy roadway runs backwards without looking - collision with car about to leave the kerb - whether breach of duty of care - contributory negligence - "blameless accident" (s 7B Motor Accidents Compensation Act 1999 (NSW)) PRACTICE AND PROCEDURE - admissibility of surveillance film (UCPR r 31.10) - tender opposed on the basis of failure to disclose prior to trial - whether forensic purpose demonstrated - surveillance film admitted into evidence
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 5D(1)(a) and 5E Motor Accidents Compensation Act 1999 (NSW), s 7B Uniform Civil Procedure Rules 2004 (NSW), r 31.10
Cases Cited:	Australian Postal Corporation v Bessey [2001] FCA 266 Axiak v Ingram [2012] NSWCA 311 Derrick v Cheung (2001) 181 ALR 301 Goodsell v Murphy (2002) 36 MVR 408 Griffiths v Kerkemeyer (1977) 139 CLR 161 Halpin v Lumley General Insurance Ltd [2009] NSWCA 372 Harrison v Melhem (2008) 72 NSWLR 380 Henderson v McLean [2007] NSWDC 199 Hill v Forrester [2010] NSWCA 170 Jaber v Rockdale City Council (2008) Aust Torts Reports Â¶81-952 Jarzebski v Jiminez [2006] NSWCA 104 Jones v Bradley [2003] NSWCA 81 Ma v Keane [2003] NSWCA 50 Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Manley v Alexander [2005] HCA 79 Tsuji v Metromix Pty Ltd (1998) 28 MVR 401 Yates v Jones (1990) Aust Torts Reports 81-009 Yip v Zreika (2001) 35 MVR 305
Texts Cited:	-
Category:	Principal judgment
Parties:	Plaintiff: Carolyn Davis Defendant: Deborah Swift
Representation:	Plaintiff: Mr G Dilworth Defendant: Mr P Cummings Plaintiff: Brazel Moore Lawyers Defendant: Moray & Agnew
File Number(s):	2009/332923
Publication restriction:	None