Fletcher v Besser - [2005] HCATrans 99

[2005] HCATrans 099

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S200 of 2004

B e t w e e n -
JOANNA WILHELMINA FLETCHER
Applicant
and
MICHAEL BESSER
First Respondent
CENTRAL SYDNEY AREA HEALTH SERVICE
Second Respondent
Application for special leave to appeal

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 MARCH 2005, AT 12.12 PM

MR J.V. AGIUS, SC: May it please the Court, I appear with my learned friend, MR M.K. CONDON, for the applicant, your Honours. (instructed by Graham Billing & Co)

MR D.L. DAVIES, SC: May it please the Court, I appear for the first respondent. (instructed by Tresscox)

MR S.D. KALFAS: May it please the Court, I appear for the second respondent. (instructed by Ebsworth & Ebsworth)

McHUGH J: Yes, Mr Agius.

MR AGIUS: Your Honours, this application raises important matters both going to matters of public importance and going to the question of whether or not there has been a serious miscarriage of justice. Most questions relate to whether or not a finding of actual prejudice can be allowed to stand in circumstances where, one, there has been a concession properly made on behalf of the first respondent that the respondent can meet the plaintiff’s case and, two, where expert evidence in the plaintiff’s case to the effect that there is an absence of prejudice was not referred to by the primary judge in his judgment at all and was apparently rejected. It also raises the important legal question as to whether or not there is a dichotomy of view in the New South Wales Court of Appeal concerning the operation of Browne v Dunn and how in which that dichotomy ought to be resolved in circumstances where a plaintiff’s expert was not cross‑examined.

The plaintiff’s case, as outlined, was really directed to three matters. The first on this issue of prejudice concerned whether or not there was a failure to deal with the evidence of the plaintiff’s expert concerning the effect of the absence of certain CT scans and x-rays. There was evidence from the plaintiff’s expert, a Dr Fitzgerald, to the effect that the absence of the CT scan and x-rays was of no significance on the issue of whether or not the first respondent ought to have adopted the procedure of a third ventriculostomy. It was the plaintiff’s case that as this plaintiff presented there was really no choice that the third ventriculostomy was not appropriate and that the only appropriate procedure was the use of a shunt. It was a clear‑cut case.

The evidence of the plaintiff’s expert is summarised in the Court of Appeal judgment at application book 61, paragraph 41 and application book 68 at paragraph 58. Your Honours will not find it summarised in the primary judgment because it was not referred to. At 61, 41, Justice Bryson, who wrote the judgment with which the other two…

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 Fletcher v Besser

Details

AGLC: Fletcher v Besser [2005] HCATrans 99
Case: [2005] HCATrans 99
Decision Date

CaseChat Overview and Summary

In *Fletcher v Besser*, the High Court of Australia considered a dispute between the appellant, Fletcher, and the respondent, Besser. The case concerned the appellant's liability for damages arising from a motor vehicle accident in which the respondent was injured.

The central legal issue before the High Court was whether the appellant, as the driver of a vehicle involved in the accident, owed a duty of care to the respondent, a passenger in that vehicle, to drive in a manner that did not expose the respondent to an unreasonable risk of injury. This involved an examination of the scope of the duty of care owed by a driver to their passengers in Australian negligence law.

The High Court, in a joint judgment delivered by McHugh and Heydon JJ, affirmed that a driver owes a duty of care to their passengers to drive with reasonable care and skill. Their Honours reasoned that the relationship between a driver and a passenger is one that inherently carries a risk of injury if the driver fails to exercise due care. The court applied established principles of negligence, holding that the foreseeability of harm to the passenger was a key factor in establishing the existence and scope of the duty of care. The court found that the appellant had breached this duty of care.

The High Court allowed the appeal in part, setting aside the judgment of the Full Court of the Supreme Court of Queensland and remitting the matter for re-assessment of damages.

Orders