John Boyd v Ronald Fielding - [2009] VSCA 237

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3763 of 2008

JOHN BOYD	Appellant
	v
RONALD FIELDING	Respondent

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JUDGES	NEAVE, DODDS-STREETON JJA and KYROU AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	4 May 2009
DATE OF JUDGMENT	21 October 2009
MEDIUM NEUTRAL CITATION	[2009] VSCA 237
JUDGMENT APPEALED FROM	Boyd v Fielding (Unreported, County Court of Victoria, Judge Misso, 15 April 2008)

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NEGLIGENCE – Motor vehicle accident – Whether judge misdirected jury as to evidence – Whether judge’s jury direction unbalanced – Obligation of judge to summarise evidence – Whether judge failed to properly relate law to the facts – Whether jury directed to disregard opinion evidence given by lay witness – Appeal dismissed.

PRACTICE AND PROCEDURE – Whether point raised in pleadings but not relied on during trial can be relied on as ground of appeal.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr G Nash QC with Mr G J Burns	M W Law
For the Respondent	Mr J Ruskin QC with Ms N Wolski	Solicitor to the Transport Accident Commission

NEAVE JA:

The appellant, Mr John Boyd, issued proceedings in the County Court seeking common law damages for injuries suffered when his motorcycle collided with a mobile crane truck driven by the respondent, Mr Ronald Fielding, in Canterbury Road, close to the intersection of Warrigal Road and Canterbury Road.[1] A jury found that the injuries suffered by Boyd in the collision were not caused by Fielding’s negligence.
[1]After the first reference to the parties and their witnesses by their full names, I will refer to them, purely for convenience, by their surnames. No disrespect is intended.

Boyd now appeals against the jury verdict. He claims that the trial judge misdirected the jury in a number of respects and seeks to have the matter remitted to the County Court for a retrial.

Background

Warrigal Road runs north-south and ends at Canterbury Road, forming the stem of a T-intersection. Canterbury Road runs east-west, forming the cross bar of the T-intersection. Both roads have two traffic lanes on each side. Fielding was travelling north on Warrigal Road and stopped his truck in the right-hand lane when the light turned red. His truck was about 14 metres long and three metres wide, with the boom of the crane protruding a couple of metres from the front of the driver’s cabin. He was turning, or had turned left into Canterbury Road from Warrigal Road, when the collision occurred. It was not disputed that he entered the intersection and began turning on a green light.

Fielding did not realise that there had been a collision. He continued driving along Canterbury Road until another driver, Ms Noelene Xerri drove after him, alerting him to the fact that Boyd had come off his motorcycle. He then reversed his truck back to the intersection and spoke to Boyd.

Boyd was travelling west on Canterbury Road and had stopped at the red light on Canterbury Road in the right-hand lane on the eastern side of…

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 John Boyd v Ronald Fielding

Details

AGLC: John Boyd v Ronald Fielding [2009] VSCA 237
Case: [2009] VSCA 237
Decision Date: 21 October 2009

CaseChat Overview and Summary

The case of John Boyd v Ronald Fielding involves a dispute over a motor vehicle accident that occurred. The plaintiff, John Boyd, alleged that the defendant, Ronald Fielding, was negligent in causing the accident. The case was heard in the court of appeal. The plaintiff sought to challenge the decision made by the trial judge in relation to the jury’s consideration of evidence. The plaintiff argued that the judge misdirected the jury as to the evidence and that the judge’s direction to the jury was unbalanced. The plaintiff also argued that the judge failed to properly relate the law to the facts of the case and that the jury was directed to disregard opinion evidence given by a lay witness.

The legal issues before the court were whether the trial judge had misdirected the jury in relation to the evidence, whether the judge’s direction to the jury was unbalanced, whether the judge had failed to properly relate the law to the facts, and whether the jury had been directed to disregard opinion evidence given by a lay witness. The court also considered whether a point raised in the pleadings but not relied on during the trial could be relied on as a ground of appeal.

The court found that the trial judge had not misdirected the jury in relation to the evidence, and that the judge’s direction to the jury was not unbalanced. The court also found that the judge had properly related the law to the facts of the case and that the jury had not been directed to disregard opinion evidence given by a lay witness. The court held that a point raised in the pleadings but not relied on during the trial could not be relied on as a ground of appeal. The appeal was therefore dismissed.

The final orders of the court were that the appeal was dismissed and that the decision of the trial judge was affirmed. The court found that the trial judge had properly directed the jury in relation to the evidence and that the jury’s verdict was supported by the evidence. The court held that the plaintiff’s arguments were not well-founded and that the appeal should be dismissed.

Orders