Dwight v Bouchier - [2003] NSWCA 3

CITATION: Dwight v Bouchier & Ors [2003] NSWCA 3

HEARING DATE(S): 4 December 2002

JUDGMENT DATE:
6 February 2003

JUDGMENT OF: Mason P at 1; Stein JA at 2; Heydon JA at 84

DECISION: 1) Appeal on liability dismissed. 2) Appeal on quantum of damages allowed in part. 3) Appellant is to pay the costs of the appeal. 4) Judgment and verdict of the trial judge be set aside and there be substituted a verdict for the first respondent in the sum of $801,814, apportioned as to $595,176 for the first respondent and the balance of $206,638 for the children. 5) The orders for costs made by the trial judge should not be disturbed.

CATCHWORDS: TORT - negligence - duty of care - motor accidents - liability - quantum - Compensation to Relatives Act 1897 - ND

LEGISLATION CITED: Compensation to Relatives Act 1897
Evidence Act 1995
Motor Accidents Act 1988, s 72
State Roads Act 1986

CASES CITED: De Sales v Ingrilli [2002] HCA 52
Gullifer v Pohto [1978] 2 NSWLR 353
Griffiths v Kerkemeyer (1977) 139 CLR 161
Husher v Husher (1999) 197 CLR 138
McIntosh v Williams [1976] 2 NSWLR 237
Phali v Commissioner for Railways [1964-65] NSWR 1545

PARTIES :
Lance Voss Dwight (Appellant)
Grada Bouchier (First Respondent)
Hawkesbury Valley Holdings (No 2) Pty Ltd (Second Respondent)
Roads and Traffic Authority (Third Respondent)

FILE NUMBER(S): CA 40041/01

COUNSEL: J D Hislop QC/Ms P J Gormley (Appellant)
B H K Donovan QC/J H Reimer (First Respondent)
H J Halligan (Second Respondent)
M Cashion SC/W S Reynolds (Third Respondent)

SOLICITORS: Henry Davis York (Appellant)
Muggletons (First Respondent)
Johnstone Robertson (Second Respondent)
Crown Solicitors (Third Respondent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 7408/00

LOWER COURT
JUDICIAL OFFICER : Hosking DCJ

CA 40041/01
DC 7408/00

MASON P
STEIN JA
HEYDON JA
Thursday, 6 February 2003

DWIGHT v BOUCHIER & ORS

Tort – negligence – duty of care – motor accidents – liability – quantum –Compensation to Relatives Act 1897

The plaintiff brought a claim under the Compensation to Relatives Act 1897 (NSW) for economic loss occasioned by the death of her husband and sustained by herself and her two children fathered by the deceased. The deceased was fatally injured while driving along a public road. A collision occurred when a semi-trailer moving along the road in the opposite direction attempted to overtake a stationary third vehicle by deviating onto a slip lane, the road shoulder and an adjacent ditch. The truck driver, the first defendant’s employee, lost control of the vehicle which veered onto the opposite side of the road, colliding with the deceased’s vehicle. The second defendant was the owner of land adjacent to where the accident occurred, who had installed a pipe in the ditch to facilitate access to its property. The third defendant was the RTA, the authority responsible for the public roadway.

The trial judge found for the plaintiff as against the first defendant, rejected the plaintiff’s claims against the second and third…

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 Dwight v Bouchier

Details

AGLC: Dwight v Bouchier [2003] NSWCA 3
Case: [2003] NSWCA 3
Decision Date: 6 February 2003

CaseChat Overview and Summary

Dwight v Bouchier concerned an appeal from a decision of the District Court of New South Wales regarding a motor accident. The appellant, Dwight, was the defendant in the original proceedings, and the respondents, Bouchier and his children, were the plaintiffs. The dispute centred on the appellant's alleged negligence in causing the motor accident and the subsequent assessment of damages.

The Court of Appeal was required to determine two primary legal issues: first, whether the trial judge erred in finding the appellant liable for negligence; and second, whether the quantum of damages awarded by the trial judge was excessive or otherwise incorrect. The appeal also involved consideration of the application of the Compensation to Relatives Act 1897 (NSW).

The Court of Appeal dismissed the appeal on the issue of liability, upholding the trial judge's finding that the appellant was negligent. However, the Court allowed the appeal in part concerning the quantum of damages. The reasoning for this partial success on appeal was not detailed in the provided text, but the outcome indicates a reassessment of the financial compensation awarded.

Consequently, the Court of Appeal set aside the original judgment and verdict. A substituted verdict was entered for the first respondent (Bouchier) in the sum of $801,814, with this amount apportioned between Bouchier ($595,176) and his children ($206,638). The appellant was ordered to pay the costs of the appeal, while the trial judge's original orders for costs were to remain undisturbed.

Orders

Orders of the court

1) Appeal on liability dismissed. 2) Appeal on quantum of damages allowed in part. 3) Appellant is to pay the costs of the appeal. 4) Judgment and verdict of the trial judge be set aside and there be substituted a verdict for the first respondent in the sum of $801,814, apportioned as to $595,176 for the first respondent and the balance of $206,638 for the children. 5) The orders for costs made by the trial judge should not be disturbed.

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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CITATION:	Dwight v Bouchier & Ors [2003] NSWCA 3
HEARING DATE(S):	4 December 2002
JUDGMENT DATE:	6 February 2003
JUDGMENT OF:	Mason P at 1; Stein JA at 2; Heydon JA at 84
DECISION:	1) Appeal on liability dismissed. 2) Appeal on quantum of damages allowed in part. 3) Appellant is to pay the costs of the appeal. 4) Judgment and verdict of the trial judge be set aside and there be substituted a verdict for the first respondent in the sum of $801,814, apportioned as to $595,176 for the first respondent and the balance of $206,638 for the children. 5) The orders for costs made by the trial judge should not be disturbed.
CATCHWORDS:	TORT - negligence - duty of care - motor accidents - liability - quantum - Compensation to Relatives Act 1897 - ND
LEGISLATION CITED:	Compensation to Relatives Act 1897 Evidence Act 1995 Motor Accidents Act 1988, s 72 State Roads Act 1986
CASES CITED:	De Sales v Ingrilli [2002] HCA 52 Gullifer v Pohto [1978] 2 NSWLR 353 Griffiths v Kerkemeyer (1977) 139 CLR 161 Husher v Husher (1999) 197 CLR 138 McIntosh v Williams [1976] 2 NSWLR 237 Phali v Commissioner for Railways [1964-65] NSWR 1545
PARTIES :	Lance Voss Dwight (Appellant) Grada Bouchier (First Respondent) Hawkesbury Valley Holdings (No 2) Pty Ltd (Second Respondent) Roads and Traffic Authority (Third Respondent)
FILE NUMBER(S):	CA 40041/01
COUNSEL:	J D Hislop QC/Ms P J Gormley (Appellant) B H K Donovan QC/J H Reimer (First Respondent) H J Halligan (Second Respondent) M Cashion SC/W S Reynolds (Third Respondent)
SOLICITORS:	Henry Davis York (Appellant) Muggletons (First Respondent) Johnstone Robertson (Second Respondent) Crown Solicitors (Third Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 7408/00
LOWER COURT JUDICIAL OFFICER :	Hosking DCJ