Flounders v Millar

Case [2007] NSWCA 238



New South Wales


Court of Appeal


CITATION: Flounders v Millar [2007] NSWCA 238
HEARING DATE(S): 27 August 2007
 
JUDGMENT DATE: 

17 October 2007
JUDGMENT OF: Ipp JA at 1; Handley AJA at 41; Hoeben J at 42
DECISION: Appeal dismissed; Cross-appeal dismissed; Appellant to pay the respondent's costs of the appeal.
CATCHWORDS: Motor vehicle accident - pedestrian on road at night in isolated industrial area - whether actual findings of trial judge were "glaringly improbable" - alleged inconsistency between statements made to police and evidence at trial - causation - did evidentiary onus on causation shift to defendant if breach established - whether accident could have been avoided - existence of rational explanation for accident inconsistent with negligence.
LEGISLATION CITED: Civil Liability Act 2002
CASES CITED: Amaca Pty Limited v Hannell [2007] WASCA 158
Batiste v State of Queensland [2002] 2 Qd R 119
Bendix Mintex Pty Limited v Barnes (1997) 42 NSWLR 307 (at 316G)
Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 419
Betts v Whittingslow (1945) 71 CLR 637 at 649
Chappel v Hart (1998) 195 CLR 232 at [23]
Coca Cola Amatil (NSW) Pty Limited v Pareezer (2006) Aust Torts Reports 81-834; [2006] NSWCA 45
Desmond v Cullen (2001) 34 MVR 186; [2001] NSWCA 238
E M Baldwin & Son Pty Limited v Plane & Anor (1998) 17 NSWCCR 434
Fairchild v Glenhaven Funeral Services Limited [2003] 1 AC 32
Forbes v Selleys Pty Limited [2004] NSWCA 149
Henry Walker Eltin Contracting Pty Limited v Hrstic [2005] NSWCA 253
Jones v Dunkel (1959) 101 CLR 298
Luxton v Vines (1952) 85 CLR 352
Manly v Alexander (2005) 80 ALJR 413 at [11]
March v Stramare (E & M H) Pty Limited (1991) 171 CLR 506
McGhee v National Coal Board [1973] 1 WLR 1
Mitor Investments Pty Limited v General Accident Fire and Life Assurance Corporation Limited [1984] WAR 365.
Naxakis v Western General Hospital (1999) 197 CLR 269 at 279
North Sydney Council v Binks [2007] NSWCA 245
Orica Limited v CGU Insurance Limited (2003) 59 NSWLR 14
Rufo v Hosking (2004) 61 NSWLR 678; [2004] NSWCA 391
Seltsam Pty Limited v McGuiness (2000) 49 NSWLR 262
Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247
TC by his tutor Sabatino v State of New South Wales [2001] NSWCA 380
Travel Compensation Fund v Tambree (2005) 224 CLR 627
Tubemakers of Australia Limited v Fernandez (1976) 50 ALJR 720
Van Den Heuvel v Tucker (2003) 85 SASR 512
Wallaby Grip v Macleay Area Health Service (1998) 17 NSWCCR 355
Workers’ Compensation (Dust Diseases) Board v Veksans (1993) 32 NSWLR 221 at 241
Zahra v Brown [2006] NSWCA 162
PARTIES: Jack Blackfeather Flounders by his tutor the Protective Commissioner - Appellant
Wayne Allan Millar - Respondent
FILE NUMBER(S): CA 40603/2006
COUNSEL: Dr A Morrison SC/Mr G Bassett - Appellant
Mr J Poulos QC/Mr B Kelleher/Ms E Elborne - Respondent
SOLICITORS: Mitchell Playford & Radburn - Appellant
Moray and Agnew -…

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AGLC
Flounders v Millar [2007] NSWCA 238
Case
[2007] NSWCA 238
Decision Date

CaseChat Overview and Summary

The appeal concerned a motor vehicle accident where the respondent, a pedestrian, was struck by the appellant's vehicle on a road at night in an isolated industrial area. The primary dispute revolved around the findings of the trial judge regarding the appellant's negligence and its causal connection to the respondent's injuries. The matter was heard in the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the trial judge's factual findings were demonstrably "glaringly improbable," particularly in light of alleged inconsistencies between statements the appellant made to the police and his evidence at trial. Furthermore, the court had to determine whether the evidentiary onus on causation shifted to the defendant once a breach of duty was established, and whether the accident could have been avoided by the appellant exercising reasonable care. The court also considered whether there was a rational explanation for the accident that was inconsistent with the appellant's negligence.

The Court of Appeal found no error in the trial judge's findings of fact, concluding that they were not "glaringly improbable." The court reasoned that the trial judge was entitled to weigh the evidence presented, including the appellant's statements and trial testimony, and to make findings based on that assessment. The court affirmed that the onus of proving causation generally rests with the plaintiff, and while a breach of duty may create a strong inference of causation, it does not automatically shift the evidentiary burden to the defendant to disprove it. The court found that the trial judge had correctly applied these principles and that there was a rational explanation for the accident consistent with the appellant's negligence.

Consequently, the appeal was dismissed, and the cross-appeal was also dismissed. The appellant was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

Appeal dismissed; Cross-appeal dismissed; Appellant to pay the respondent's costs of the appeal.

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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