Fairall v Hobbs

Case [2017] NSWCA 82

Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Fairall v Hobbs [2017] NSWCA 82
Hearing dates: 24 March 2017
Decision date: 18 April 2017
Before: McColl A/P at [1];
Leeming JA at [9];
Payne JA at [16].
Decision:

(1) Appeal allowed.
(2) Set aside the orders of the primary judge of 26 May 2016 and in lieu thereof make the following orders:
(a) amended statement of claim dismissed;
(b) respondent to pay the appellants’ costs as agreed or assessed.
(3) Respondent to pay the appellants’ costs of the appeal as agreed or assessed.
(4) Notice of cross-appeal dismissed with costs.

Catchwords: TORT – negligence – motor vehicle accidents – respondent thrown from horse while riding along side of road – whether primary judge erred in finding motor vehicle owned by first appellant and driven by second appellant caused the respondent’s horse to shy and buck – whether there was a “motor accident” under the Motor Accidents Compensation Act – whether primary judge erred – requirements in ss 5B or 5D of the Civil Liability Act – whether blameless motor accident
Legislation Cited: Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
District Court Act 1973 (NSW)
Evidence Act 1995 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Cases Cited: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48
Awad v ISPT Pty Ltd & Jones Lang LaSalle (NSW) Pty Ltd & Glad Cleaning Services Pty Ltd (No 1) [2015] NSWDC 329
Axiak v Ingram (2012) 82 NSWLR 36; [2012] NSWCA 311
Colonial Sugar Refining Co Ltd v Attorney General for the Commonwealth (1912) 15 CLR 182
Flowers v SAS Trustee Corporation [2015] NSWDC 275
Garzo v Liverpool / Campbelltown Christian School. [2012] NSWCA 151
Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320
Nominal Defendant v Hawkins [2011] NSWCA 93
Nominal Defendant v Ismail [2014] NSWCA 432
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Rook v State of New South Wales (No 3) [2015] NSWDC 154
RTA v Dederer (2007) 234 CLR 330; [2007] HCA 42
Sargood Brothers v Commonwealth (1910) 11 CLR 258
Shoalhaven City Council v Pender [2013] NSWCA 210
Tito v Waddell (No 2) [1977] Ch 106
Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320
Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434
Category:Principal judgment
Parties:

Carolyn Maree Fairall (First appellant)
Holly Lee Fairall (Second appellant)

  Anthony Hobbs (Respondent)
Representation:

Counsel:
Keith Rewell SC with Ben Wilson (Appellants)
Ian Roberts SC (Respondent)

  Solicitors:
Hall & Wilcox (Appellants)
Walsh & Blair Lawyers (Respondent)
File Number(s): 2016/186993
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Civil
Citation:
[2016] NSWDC 116
Date of Decision:
26 May 2016
Before:
Neilson DCJ
File Number(s):
2014/179721

Judgment

  1. McCOLL A/P: I have had the benefit of reading Payne JA’s reasons…

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Details
AGLC
Fairall v Hobbs [2017] NSWCA 82
Case
[2017] NSWCA 82
Decision Date

CaseChat Overview and Summary

The appellants, Mr. and Mrs. Hobbs, appealed to the Court of Appeal of New South Wales against a decision of the primary judge who had found them liable in negligence for injuries sustained by the respondent, Mr. Fairall. Mr. Fairall was thrown from his horse while riding along the side of a road, and the primary judge determined that a motor vehicle owned by the first appellant and driven by the second appellant had caused the horse to shy and buck, thereby causing Mr. Fairall's fall. The central dispute concerned whether the incident constituted a "motor accident" for the purposes of the *Motor Accidents Compensation Act 1999* (NSW) and whether the appellants were negligent under the principles of the *Civil Liability Act 2002* (NSW).

The Court of Appeal was required to determine whether the primary judge had erred in finding that the appellants' motor vehicle caused the respondent's horse to shy and buck, and consequently, whether there was a "motor accident" as defined by the *Motor Accidents Compensation Act 1999* (NSW). Further, the court had to consider whether the elements of negligence, as prescribed by sections 5B and 5D of the *Civil Liability Act 2002* (NSW), were established, and whether the incident could be characterised as a "blameless motor accident."

The Court of Appeal allowed the appeal, finding that the primary judge had erred in their determination. The court reasoned that the incident did not fall within the definition of a "motor accident" under the *Motor Accidents Compensation Act 1999* (NSW), as the vehicle's proximity to the horse, even if it caused the horse to react, did not constitute an "accident arising out of the use of the motor vehicle" in the manner contemplated by the Act. The court also found that the requirements of the *Civil Liability Act 2002* (NSW) for establishing negligence were not met on the facts presented. Consequently, the Court of Appeal set aside the orders of the primary judge, dismissed the amended statement of claim, and ordered the respondent to pay the appellants' costs. The respondent's notice of cross-appeal was also dismissed with costs.

Orders

Orders of the court

(1) Appeal allowed.

(2) Set aside the orders of the primary judge of 26 May 2016 and in lieu thereof make the following orders:

(a) amended statement of claim dismissed;

(b) respondent to pay the appellants’ costs as agreed or assessed.

(3) Respondent to pay the appellants’ costs of the appeal as agreed or assessed.

(4) Notice of cross-appeal dismissed with costs.

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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