Hunt v Watkins

Case [2000] NSWCA 229
Reported Decision: [2000] 49 NSWLR 508

New South Wales


Court of Appeal

CITATION: Hunt v Watkins [2000] NSWCA 229
FILE NUMBER(S): CA 40466/99
HEARING DATE(S): 11 August 2000
JUDGMENT DATE:
23 August 2000

PARTIES :
Karen Joy Hunt (Appellant)
Paul David Watkins (Respondent)
JUDGMENT OF: Stein JA at 1; Fitzgerald JA at 23; Heydon JA at 24
LOWER COURT JURISDICTION : District Court
LOWER COURT
FILE NUMBER(S) : 		DC 44/92
LOWER COURT
JUDICIAL OFFICER :		 Blanch J
COUNSEL: P J Doherty (Appellant)
D R Russell (Respondent)
SOLICITORS: Garrett Walmsley Madgwick (Appellant)
Donovan Oates Hannaford (Respondent)
CATCHWORDS: PRACTICE & PROCEDURE - Part 26 Rule 8 District Court Rules - verdict by direction for defendant - jury test - plaintiff's evidence taken at highest - D
LEGISLATION CITED: Part 26 Rule 8 District Court Rules
Part 34 Rule 8 Supreme Court Rules
CASES CITED:
 De Gioia v Darling Island Stevedoring & Lighterage Co Ltd (1941) 42 SR (NSW) 1
Mailman v Ellison (Court of Appeal, 25 November 1993, unreported)
DECISION: Appeal allowed with costs. Respondent to have a certificate under the Suitors' Fund Act 1951 if so entitled. Verdict and judgment of Blanch J set aside, including his order that the plaintiff pay the defendant's costs. Order a new trial.



    IN THE SUPREME COURT
    OF NEW SOUTH WALES
    COURT OF APPEAL
                    CA 40466/99
    DC 44/92
                        STEIN JA
                            FITZGERALD JA
                            HEYDON JA
    Wednesday, 23 August 2000
    Karen Joy HUNT v Paul David WATKINS

At first instance

The appellant (plaintiff) sued the respondent (defendant) for damages for negligence for personal injuries arising out of an accident she suffered as a passenger in a dodgem car being operated by the defendant at the annual Wauchope show.

At the close of the plaintiff’s case the defendant sought a verdict by direction in his favour. The application was made under Part 26 Rule 8 District Court Rules which refers to whether ‘on the evidence given’ judgment for the plaintiff ‘could not be supported’. The trial judge concluded that there was no evidence of causation and the accident was not foreseeable. His Honour acceded to the application and entered a verdict for the defendant and ordered the plaintiff to pay the defendant’s costs. The plaintiff appeals from these orders.

Held (Stein JA, Fitzgerald and Heydon JJA agreeing)

The test to apply when considering an application by the defendant for a verdict at the conclusion of the evidence in a plaintiff’s case is a jury test, and in applying it the plaintiff’s evidence should be taken at its highest.

The jury test provides that the plaintiff’s case is to be dismissed if the evidence adduced was such that a verdict in the plaintiff’s favour by a jury would, if challenged, necessarily be set aside, Mailman v Ellison (Court of Appeal, 25 November 1993, unreported) applied.

On the present facts, there was evidence on which the jury could have found in the plaintiff’s favour. The evidence was not such that a verdict in the plaintiff’s favour by the jury would…

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AGLC
Hunt v Watkins [2000] NSWCA 229
Case
[2000] NSWCA 229
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between the plaintiff, Hunt, and the defendant, Watkins, in the District Court of New South Wales. The primary issue before the Court of Appeal was whether the trial judge, Blanch J, had erred in directing a verdict in favour of the defendant at the close of the plaintiff's evidence.

The Court of Appeal was required to determine whether the plaintiff's evidence, when taken at its highest, was capable of establishing a prima facie case, thereby entitling the plaintiff to have the matter determined by the jury. This involved an assessment of whether there was any evidence upon which a reasonable jury could find for the plaintiff.

The Court of Appeal found that the trial judge had incorrectly applied the test for a verdict by direction. It held that the plaintiff's evidence, when viewed in the most favourable light, did present a case that a jury could have considered. Consequently, the judge should not have withdrawn the case from the jury.

Accordingly, the Court of Appeal allowed the appeal, set aside the verdict and judgment of Blanch J, and ordered a new trial. The respondent was also to have a certificate under the Suitors’ Fund Act 1951 if entitled.

Orders

Orders of the court

1. Appeal allowed with costs.

2. Respondent to have a certificate under the Suitors’ Fund Act 1951 if so entitled.

3. Verdict and judgment of Blanch J set aside, including his order that the plaintiff pay the defendant’s costs.

4. Order a new trial.

oOo

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40466/99

DC 44/92

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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