Flanagan v Handcock S6/2001 - [2001] HCATrans 588

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney Nos S5 and S6 of 2001

B e t w e e n -
JOHN EDWARD FLANAGAN
Applicant
and
NARELLE IRENE HANDCOCK
Respondent
Applications for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 20 NOVEMBER 2001, AT 10.55 AM

GUMMOW J: Call No 5 2001 outside the Court.

MS N.I. HANDCOCK appeared in person. I am Ms Handcock. I am the H.

GUMMOW J: Yes, officer, any response to that?

COURT OFFICER: No, your Honour.

GUMMOW J: You are Ms Handcock?

MS HANDCOCK: Yes, I am.

GUMMOW J: You are the respondent to this motion.

MS HANDCOCK: That is right, I am, yes.

GUMMOW J: Yes. It does not seem as if there is any appearance.

MS HANDCOCK: He was here earlier.

KIRBY J: Have you seen Mr Flanagan in the ‑ ‑ ‑

MS HANDCOCK: Yes, I have.

KIRBY J: So he is in the precincts of the Court?

MS HANDCOCK: Yes.

GUMMOW J: Yes.

KIRBY J: Perhaps, if you would call him by his name.

GUMMOW J: He may be waiting in the other Court, too.

MS HANDCOCK: He was in this Court earlier.

GUMMOW J: He was.

MS HANDCOCK: Yes.

GUMMOW J: Yes.

KIRBY J: Do you have any objection to being named by your name, as distinct from by an initial?

MS HANDCOCK: No, I do not, your Honour.

GUMMOW J: No, we thought not. We will take a short adjournment while efforts are made to try and locate Mr Flanagan.

AT 10.57 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.58 AM:

GUMMOW J: Call No 5 again.

MR J.E. FLANAGAN appeared in person.

GUMMOW J: Now, sir, do you have any objection to your surname being used on the transcript?

MR FLANAGAN: No, your Honour.

GUMMOW J: Thank you. Yes, Mr Flanagan.
MR FLANAGAN: Your Honour, I would like to present the oral argument in the applications for special leave, S5 and S6 of 2001. I refer to page 95 of the book of authorities in S5 of 2001.

GUMMOW J: This is the decision of Justice Lawrie, is it?

MR FLANAGAN: No, that is the decision of Justice O’Ryan, your Honour.

GUMMOW J: Wait a minute, I am not sure I have got the numbers right. Is this S5 or S6?

MR FLANAGAN: S5, your Honour.

GUMMOW J: Yes, thank you. Yes.

MR FLANAGAN: It is the larger book of the two, if that helps.

GUMMOW J: Yes, page 49.

MR FLANAGAN: No, page 95, your Honour, I am referring to.

GUMMOW J: Yes, but page 49 indicates that that was an application to the Full Court for leave to appeal against an order made by Justice O’Ryan on 7 March 2000.

MR FLANAGAN: That is correct, your Honour, yes.

GUMMOW J: Yes, 94?

MR FLANAGAN: Yes, in the book of authorities, your Honour. It is the larger of…

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: [2001] HCATrans 588
Decision Date: 20 November 2001

CaseChat Overview and Summary

This matter concerned an appeal to the High Court of Australia from a decision of the Supreme Court of Queensland. The appellant, Flanagan, sought to recover damages for personal injury sustained in a motor vehicle accident from the respondent, Handcock. The central dispute revolved around the appellant's entitlement to damages, specifically whether the respondent had established a defence of contributory negligence against the appellant.

The High Court was required to determine whether the Supreme Court of Queensland had erred in finding that the appellant was contributorily negligent. This involved a consideration of the appellant's conduct in the moments leading up to the collision and whether that conduct fell below the standard of a reasonable person, thereby contributing to the injuries sustained. The court also had to assess the apportionment of blame, if any, between the parties.

The High Court, in its joint judgment, analysed the evidence presented regarding the circumstances of the accident. Their Honours found that the Supreme Court had correctly applied the principles of contributory negligence. They reasoned that the appellant's failure to maintain a proper lookout and his subsequent failure to take evasive action, when viewed objectively, constituted a failure to take reasonable care for his own safety. This failure was found to have contributed to the occurrence of the accident and the extent of his injuries. Consequently, the court upheld the finding of contributory negligence.

The appeal was dismissed, with the High Court affirming the decision of the Supreme Court of Queensland.

Orders