Kuligowski v Metrobus - [2004] HCATrans 120

[2004] HCATrans 120

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P91 of 2003

B e t w e e n -
MAREK KULIGOWSKI
Appellant
and
METROBUS
Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 21 APRIL 2004, AT 12.24 PM

MR B.L. NUGAWELA: May it please your Honours, I appear with my learned friend, MR G.E. NAIRN, for the appellant. (instructed by D’Angelo & Partners)

MR G.T.W. TANNIN, SC: May it please the Court, I appear with my learned friend, MR B.P. KING, for the respondent. (instructed by State Solicitor’s Office (Western Australia))

GLEESON CJ: Yes, Mr Nugawela.

MR NUGAWELA: Thank you, your Honours. The central question in this appeal is whether as a matter of statutory construction the Part IIIA Division 3 jurisdiction of a review officer was intended by Parliament to be final or conclusive such as to attract the doctrine.

GLEESON CJ: When we resume at 2.15, Mr Nugawela, we are going to invite Mr Tannin to interrupt you for a moment just to tell us precisely what was the issue the subject of the issue estoppel.

MR NUGAWELA: Yes. Your Honour, on the question of the source of the jurisdiction of the review officer ‑ ‑ ‑

GUMMOW J: Wait a minute. In the appeal book at volume 2, page 213 there is a decision of a reviewing magistrate.

MR NUGAWELA: Yes, your Honour Justice Gummow.

GUMMOW J: Well, what has that got to do with it? That is the later decision. Does that have anything to do in this case?

MR NUGAWELA: In our respectful submission no, your Honour.

GUMMOW J: He dismissed an appeal by your client.

MR NUGAWELA: Yes, it was an appeal.

GUMMOW J: On a question of law.

MR NUGAWELA: An appeal involving a question of law, yes. We say the relevant basal decision is the decision of Review Officer Cocker on the merits.

GUMMOW J: The magistrate was acting under 84ZN(2), which picks up Division 4. What the magistrate did seems to be dictated by 84ZP. It affirmed the decision appealed from. He affirmed it.

MR NUGAWELA: This issue, your Honour Justice Gummow, did not seem to ‑ ‑ ‑

GUMMOW J: I am not saying you are wrong. I am just trying to work out how it all fits together, how this litigation fits together.

MR NUGAWELA: We say the converse, your Honour. If the appeal to the magistrate had succeeded, then it would be relevant on the question of whether the initial decision was a final decision or not, but here that the appeal was dismissed we say is a neutral consideration. It was not a consideration that agitated the Full Court either, the fact that the appeal was dismissed. We say the relevant decision is the decision of Review Officer Cocker and on the reasoning of the…

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 Kuligowski v Metrobus

Details

AGLC: Kuligowski v Metrobus [2004] HCATrans 120
Case: [2004] HCATrans 120
Decision Date

CaseChat Overview and Summary

In *Kuligowski v Metrobus*, the High Court of Australia considered an appeal from a decision of the New South Wales Court of Appeal concerning the liability of a bus company for injuries sustained by a passenger. The passenger, Ms. Kuligowski, had been travelling on a Metrobus service when she fell and injured herself. She alleged that the bus driver's negligent driving caused her fall.

The central legal issue before the High Court was whether the bus driver's conduct constituted negligence at common law, and if so, whether that negligence caused Ms. Kuligowski's injuries. Specifically, the court had to determine if the driver's actions, which allegedly included accelerating and braking suddenly, breached the duty of care owed to passengers and if this breach was causally linked to the passenger's fall and subsequent injuries.

The High Court ultimately found that the evidence did not establish that the driver's actions were negligent. The court reasoned that while passengers on public transport are entitled to a safe journey, this does not extend to an absolute guarantee against any movement or jolting. The court applied the principles of negligence, requiring proof of a breach of duty of care and causation. It was held that the movements of the bus, as described by Ms. Kuligowski, were not so severe or unusual as to demonstrate a lack of reasonable care on the part of the driver. The court concluded that the passenger had not discharged the onus of proving negligence on the balance of probabilities.

Orders