Hamshere v Favelle - [2009] NSWCA 4

New South Wales

Court of Appeal

CITATION: Hamshere v Favelle [2009] NSWCA 4

HEARING DATE(S): 18 December 2008

JUDGMENT DATE:
12 February 2009

JUDGMENT OF: Hodgson JA at 1; Campbell JA at 2; Macfarlan JA at 3

DECISION: Appeal dismissed with costs.

CATCHWORDS: TORTS - Negligence - Appellant motor cyclist injured in collision with respondent's car door - Whether respondent negligent in opening his car door or in leaving it open

CATEGORY: Principal judgment

CASES CITED: Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301
Dos Santos v C Morris Painting & Decorating [2006] NSWCA 54; 45 MVR 168
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254
New South Wales v Fahy [2007] HCA 20; 81 ALJR 1021
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330
Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; 192 CLR 431

PARTIES: Thomas John Cameron Hamshere (Appellant)
Matthew Favelle (Respondent)

FILE NUMBER(S): CA 40936/07

COUNSEL: J Gormly SC/S Galitsky (Appellant)
L King SC/P Sternberg (Respondent)

SOLICITORS: G A Kinsey Solicitors
Sparke Helmore Lawyers

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 4068/06

LOWER COURT JUDICIAL OFFICER: Balla DCJ

LOWER COURT DATE OF DECISION: 7 December 2007

CA 40936/07
DC 4068/06

HODGSON JA
CAMPBELL JA
MACFARLAN JA
THURSDAY 12 FEBRUARY 2009

HAMSHERE v FAVELLE

Judgment

1 HODGSON JA: I agree with Macfarlan JA.

2 CAMPBELL JA: I agree with Macfarlan JA.

3 MACFARLAN JA: This is an appeal from a decision of Balla DCJ in proceedings brought by the appellant for damages for injury suffered by him in a road accident which occurred on 24 August 2004. Her Honour directed judgment for the respondent, who was the defendant below, finding that negligence on his part had not been proved.

4 The injury to the appellant occurred when the motorcycle he was riding collided with the driver’s door of a parked car in which the respondent was seated and from which the respondent was about to alight. The accident occurred at dusk on Allison Crescent in Menai New South Wales. The appellant’s front headlight was illuminated at the time of the accident.

5 The primary judge described the circumstances of the accident as follows:

“The plaintiff entered a roundabout from Menai Road and turned into Allison Crescent. He travelled in a northerly direction towards the intersection with Mina Road. The speed limit on Allison Crescent was 50 kilometres per hour. Shortly before the accident there were two vehicles travelling in front of his motorbike.

The photographs show a typical suburban road with a broken white line down the centre. It narrowed in the area where the accident occurred. There is a straight level stretch of road from the intersection with Schofield Place for about 100 metres and then the road curves to the right.

The defendant had parked just outside his town house. This was at a point on Allison…

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 Hamshere v Favelle

Details

AGLC: Hamshere v Favelle [2009] NSWCA 4
Case: [2009] NSWCA 4
Decision Date: 12 February 2009

CaseChat Overview and Summary

The appellant, a motor cyclist, brought proceedings against the respondent following a collision where the appellant sustained injuries. The dispute concerned the respondent's alleged negligence in opening his car door or in leaving it open, which allegedly caused the collision. The matter was heard on appeal before the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether the respondent had acted negligently in opening his car door or in leaving it open, thereby causing or contributing to the appellant's injuries. This required the court to consider the standard of care owed by a driver to other road users when opening or leaving a car door adjacent to a roadway.

The Court of Appeal ultimately dismissed the appeal. The judges, Hodgson JA, Campbell JA, and Macfarlan JA, were not persuaded that the respondent had breached the requisite duty of care. Their reasoning, though not detailed in the provided text, would have involved an assessment of the respondent's actions against the standard of a reasonable driver in similar circumstances, considering factors such as visibility, traffic conditions, and the proximity of the appellant's motor cycle. The court found no error in the primary decision. The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Hamshere v Favelle [2009] NSWCA 4
HEARING DATE(S):	18 December 2008
JUDGMENT DATE:	12 February 2009
JUDGMENT OF:	Hodgson JA at 1; Campbell JA at 2; Macfarlan JA at 3
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	TORTS - Negligence - Appellant motor cyclist injured in collision with respondent's car door - Whether respondent negligent in opening his car door or in leaving it open
CATEGORY:	Principal judgment
CASES CITED:	Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301 Dos Santos v C Morris Painting & Decorating [2006] NSWCA 54; 45 MVR 168 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 New South Wales v Fahy [2007] HCA 20; 81 ALJR 1021 Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; 192 CLR 431
PARTIES:	Thomas John Cameron Hamshere (Appellant) Matthew Favelle (Respondent)
FILE NUMBER(S):	CA 40936/07
COUNSEL:	J Gormly SC/S Galitsky (Appellant) L King SC/P Sternberg (Respondent)
SOLICITORS:	G A Kinsey Solicitors Sparke Helmore Lawyers
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	4068/06
LOWER COURT JUDICIAL OFFICER:	Balla DCJ
LOWER COURT DATE OF DECISION:	7 December 2007