Keppie v Foster - [2014] NSWDC 383

District Court

New South Wales

Medium Neutral Citation: Keppie v Foster [2014] NSWDC 383
Hearing dates: 19-21 May 2014
Date of orders: 21 May 2014
Decision date: 21 May 2014
Jurisdiction: Civil
Before: Neilson DCJ
Decision:
Verdict and judgment for the plaintiff against the defendant in the amount of $7,396.36
Defendant to pay the plaintiff’s costs
Catchwords: TORTS – Motor accident claim – Claim pleaded as an action in negligence but actual tort alleged was trespass to the person – Plaintiff alleged he was deliberately run over by defendant – Defendant acquitted on criminal charges – Factual dispute decided in favour of plaintiff – Plaintiff has IQ of 65 – Plaintiff accident prone – No continuing disability related to his MVA – Plaintiff not entitled to damages for non-economic loss – Plaintiff outside workforce prior to this MVA – Very small judgment for plaintiff – Whether plaintiff entitled to costs.
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Miller v Galderisi [2009] NSWCA 353
Nominal Defendant v Lane [2004] NSWCA 405
Category: Principal judgment
Parties: Matthew John Keppie (Plaintiff)
Johnnie Foster (Defendant)
Representation:
Counsel:
Mr R Food (Plaintiff)
Mr J Ryan (Defendant)
Solicitors:
Farrell-Lusher Solicitors (Plaintiff)
Moray and Agnew (Defendant)

File Number(s): 2012/185842
Publication restriction: No

Judgment

HIS HONOUR: The plaintiff, Mr Matthew John Keppie of Wagga Wagga, brings an action for damages for personal injury. The tort relied upon in the statement of claim is the tort of negligence. In paragraph 3 of the statement of claim it is alleged that on 19 April 2010, the defendant drove his motor vehicle over the plaintiff, causing him severe personal injury and loss. The second particular of negligence given is "deliberately driving into the plaintiff". In essence, the plaintiff alleges the tort of trespass to the person.
On one view of it, it could be said that the evidence called by the plaintiff and the evidence called by the defendant on the question of liability is fairly evenly balanced. I have been very properly referred by learned counsel for the defendant to the decision of the High Court of Australia in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. The most crystalline judgment delivered in that case was by Sir Edward McTiernan. At 372, his Honour said this:

"English law adopts the reasonable rule that the strictness of the proof of an issue should be governed by the nature of the issue and its consequences. Lord Brougham's speech in defence of Queen Caroline describes an ascending scale of issues which illustrates this principle: 'The evidence before us,' he said, 'is inadequate even to prove a debt, impotent to deprive of a civil right, ridiculous for convicting of the pettiest offence, scandalous if brought forward to support a charge of any grave character, monstrous if to ruin the honour of an English Queen.' The law presumes against guilt of vice and immorality…A learned authority says,…

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 Keppie v Foster

Details

AGLC: Keppie v Foster [2014] NSWDC 383
Case: [2014] NSWDC 383
Decision Date: 21 May 2014

CaseChat Overview and Summary

The case of Keppie v Foster involved the plaintiff, Mr Keppie, who claimed damages for an incident in which the defendant, Mr Foster, allegedly ran him over deliberately. The dispute was heard in the Supreme Court of Queensland. The plaintiff argued that the defendant's actions constituted trespass to the person, a tort distinct from negligence. The court needed to determine the legal basis for the plaintiff's claim, as well as the quantum of damages, if any, the plaintiff was entitled to.

The court considered whether the plaintiff's claim was best framed in negligence or as trespass to the person, given that the plaintiff had pleaded negligence but the factual circumstances suggested an intentional act. The court also had to decide on the nature and extent of any damages, including non-economic loss, and whether the plaintiff was entitled to any costs. The plaintiff's intellectual capacity and pre-existing accident-prone nature were relevant factors in assessing damages.

The Supreme Court found that the plaintiff's claim should be treated as trespass to the person, as the facts supported an intentional act rather than negligence. The court accepted that the plaintiff was deliberately run over but noted that he had no continuing disability from the motor vehicle accident. The plaintiff's pre-existing accident-prone nature and intellectual capacity, with an IQ of 65, were considered in determining the appropriate level of damages. The court awarded a small sum for non-economic loss, acknowledging the intentional nature of the act but also considering the plaintiff's limited ability to articulate his loss. The court also found that the plaintiff was entitled to his costs.

The court ordered a verdict and judgment in favour of the plaintiff against the defendant for $7,396.36. The defendant was further ordered to pay the plaintiff's costs.

Orders

Orders of the court

Verdict and judgment for the plaintiff against the defendant in the amount of $7,396.36

Defendant to pay the plaintiff’s 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Keppie v Foster [2014] NSWDC 383
Hearing dates:	19-21 May 2014
Date of orders:	21 May 2014
Decision date:	21 May 2014
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Verdict and judgment for the plaintiff against the defendant in the amount of $7,396.36 Defendant to pay the plaintiff’s costs
Catchwords:	TORTS – Motor accident claim – Claim pleaded as an action in negligence but actual tort alleged was trespass to the person – Plaintiff alleged he was deliberately run over by defendant – Defendant acquitted on criminal charges – Factual dispute decided in favour of plaintiff – Plaintiff has IQ of 65 – Plaintiff accident prone – No continuing disability related to his MVA – Plaintiff not entitled to damages for non-economic loss – Plaintiff outside workforce prior to this MVA – Very small judgment for plaintiff – Whether plaintiff entitled to costs.
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Miller v Galderisi [2009] NSWCA 353 Nominal Defendant v Lane [2004] NSWCA 405
Category:	Principal judgment
Parties:	Matthew John Keppie (Plaintiff) Johnnie Foster (Defendant)
Representation:	Counsel: Mr R Food (Plaintiff) Mr J Ryan (Defendant) Solicitors: Farrell-Lusher Solicitors (Plaintiff) Moray and Agnew (Defendant)
File Number(s):	2012/185842
Publication restriction:	No