Hodges v New South Wales - [1988] HCA 9

HIGH COURT OF AUSTRALIA

Brennan J.

HODGES AND ANOTHER v. STATE OF NEW SOUTH WALES AND ANOTHER

9 March 1988

Decision

BRENNAN J. This is an application by the defendants to strike out a statement of claim in which a declaration is sought that a New South Wales statute, the Transport Accidents Compensation Act 40 1987 ("the Act"), is invalid. The defendant applicants are the State of New South Wales and the Government Insurance Office of New South Wales which has responsibility for implementing and administering the scheme for transport accidents compensation embodied in the Act. The scheme is known as Transcover.

2. The defendants have already demurred to the whole of the plaintiffs' statement of claim and the demurrer has been entered for argument before a Full Court. It is surprising that, after demurring to a statement of claim, an application should be made under O.26 r.18 to strike out the pleading demurred to on the ground that it does not disclose a reasonable cause of action. That is the question of law which the demurrer raises for decision and if it is demonstrable "that the case of the plaintiff is so clearly untenable that it cannot possibly succeed" - I take the phrase from the judgment of Barwick C.J. in General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) 40 (1964) 112 CLR 125, at p 130 - the summary intervention of the Court should be invoked before seeking a judgment in demurrer.

3. However, a pending demurrer does not preclude an application under O.26 r.18. It is therefore necessary to consider what is alleged and claimed in the statement of claim in order to determine whether it discloses a reasonable cause of action. The facts alleged in the plaintiffs' statement of claim, which was delivered with the writ of summons, include the following. The first plaintiff is the widow of a person whose death was caused by or arose out of a transport accident which occurred in New South Wales on 2 January 1988. The second plaintiff, who sues by his next friend, suffered bodily injury caused by or arising out of a transport accident which occurred in New South Wales on 19 July 1987. The facts relating to the respective accidents show that the negligence of another driver involved was a cause of the accident and of the resultant death or injury. Accordingly, it appears that, but for the provisions of s.40(1) of the Act, each of the plaintiffs would have had a cause of action enforceable in New South Wales. The first plaintiff would have had a cause of action upon the death of her husband by virtue of the Compensation to Relatives Act 1897 (N.S.W.); the second plaintiff would have had a cause of action enforceable directly against the Government Insurance Office pursuant to s.14 of the Motor Vehicles (Third Party Insurance) Act 1942 (N.S.W.). Section 40(1) of the Act provides:

" No right to or claim for damages or compensation or any…

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: [1988] HCA 9
Decision Date: 9 March 1988

CaseChat Overview and Summary

Hodges (the plaintiff) brought proceedings against the State of New South Wales (the defendant) in the High Court of Australia. The dispute concerned the plaintiff's claim for damages for personal injuries sustained as a result of the defendant's alleged negligence. The plaintiff alleged that the defendant, through its servants or agents, had been negligent in the management and control of a motor vehicle, which led to the plaintiff suffering injuries.

The central legal issue before Brennan J was whether the plaintiff had established a breach of duty of care on the part of the defendant. Specifically, the court was required to determine if the actions or omissions of the defendant's employees in managing the motor vehicle fell below the standard of care expected of a reasonable person in the circumstances, thereby causing the plaintiff's injuries.

Brennan J applied the principles of negligence as established in Australian common law. His Honour considered the foreseeability of harm, the likelihood of that harm occurring, and the potential severity of the injury. The court examined the evidence presented regarding the conduct of the defendant's employees and assessed whether that conduct was reasonable in the context of the situation. The ultimate determination rested on whether the defendant had taken all reasonable precautions to avoid the risk of injury to the plaintiff.

Orders