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Lee v Dow

Lee v Dow

Case [2017] NSWDC 220 17 August 2017

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District Court

New South Wales

Medium Neutral Citation: Lee v Dow [2017] NSWDC 220
Hearing dates: 22 – 23 May 2017; 3 August 2017
Date of orders: 17 August 2017
Decision date: 17 August 2017
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
(1) Judgment for the plaintiff against the defendant in the sum of $119,854.50.
(2) The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.
(3) Liberty to apply in relation to costs.
(4) Exhibits to be returned after 28 days.

Catchwords: Torts – negligence – plaintiff injured when tractor driven by the defendant reversed through a fence – whether defendant breached duty of care - res ipsa loquitor– whether alleged warning causatively relevant - extent of plaintiff’s injuries – future care
Legislation Cited: Civil Liability Act 2002 (NSW)
Cases Cited: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
Anchor Products v Hedges (1966) 115 CLR 493
Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139
Henderson v Henry E Jenkins & Sons [1970] AC 282
Johnson v Nominal Defendant [2003] NSWCA 153
Manley v Alexander (2005) 80 ALJR 413
Marien v Gardiner [2013] NSWCA 396
Mummery v Irvings (1956) 96 CLR 99
Sampco Pty Ltd v Wurth [2015] NSWCA 117
Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121
Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364
Strong v Woolworths Ltd (2012) 246 CLR 182
Takla v Nasr [2013] NSWCA 435
Wallace v Kam (2013) 250 CLR 375
Category: Principal judgment
Parties: Honor Lee (Plaintiff)
Robert Dow (Defendant)
Representation:
Counsel:
M McAuley
M Cleary
Solicitors:
Paul A Curtis & Co (Plaintiff)
Foleys Lawyers (Defendant)

File Number(s): 2016/00112821

Judgment

These proceedings relate to an accident which occurred on 20 April 2013. A tractor driven by the defendant was reversing on a rural property and proceeded through a fence thereby dragging the plaintiff enmeshed in the fence to the bottom of a creek bed. The plaintiff suffered injuries particularly to her hand. The tractor had only a conditional registration at the time: Exhibit 1. As the accident occurred on private property and the plaintiff was not an employee but the neighbour of the defendant, the proceedings are brought under the Civil Liability Act 2002 (NSW) (“CLA”). The plaintiff claims damages in negligence from the defendant for her injuries.

The pleadings

Amended Statement of Claim

An Amended Statement of Claim was filed by the plaintiff in court with leave on 23 May 2017. The plaintiff alleges that the defendant owed her a duty of care in relation to the operation of the tractor on the day in question, 30 April 2013, and that he breached that duty causing her extensive injuries. The particulars of breach are set out in paragraph 17 of the Amended Statement of Claim and are as follows:

“17. The defendant by its servants or agents was negligent in that it:
17.1 Failed to take any or any adequate care for the safety 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 Lee v Dow

Details

AGLC: Lee v Dow [2017] NSWDC 220
Case: [2017] NSWDC 220
Decision Date: 17 August 2017

CaseChat Overview and Summary

The plaintiff, Lee, sued the defendant, Dow, for damages arising from injuries sustained when Dow’s tractor reversed through a fence, causing Lee to be injured. The case was heard in the Supreme Court of Queensland. Lee sought compensation for the injuries and related costs, arguing that Dow was negligent in operating the tractor. Dow denied liability and claimed that any injuries were not a result of his actions.

The court was required to determine whether Dow breached his duty of care to Lee, whether the principle of res ipsa loquitur applied, and if the alleged warning was causatively relevant to Lee’s injuries. Additionally, the court needed to assess the extent of Lee’s injuries and the need for future care, to determine the appropriate quantum of damages.

The court found that Dow was indeed negligent in operating the tractor, as he failed to take reasonable care to avoid causing injury to Lee. The principle of res ipsa loquitur applied, as the incident was such that it did not occur without negligence. The court held that the alleged warning from Dow to Lee was not causatively relevant to the injuries sustained. The court assessed Lee’s injuries and concluded that he would require ongoing care, which was factored into the damages awarded.

The court ordered judgment for the plaintiff in the sum of $119,854.50, with the defendant to pay the plaintiff’s costs. The defendant was also granted liberty to apply in relation to costs, and the exhibits were to be returned after 28 days.

Orders

Orders of the court

(1) Judgment for the plaintiff against the defendant in the sum of $119,854.50.

(2) The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.

(3) Liberty to apply in relation to costs.

(4) Exhibits to be returned after 28 days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Lee v Dow [2017] NSWDC 220

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 25 of 25 shown

SampCo Pty Ltd v Wurth
[2015] NSWCA 117 Para 157

…apist, quantifying the plaintiff’s alleged needs for domestic assistance. Reliance is placed on the comments of Basten JA in Sampco Pty Ltd v Wurth [2015] NSWCA 117 at [83]. Accordingly, it was submitted that I should place little weight upon hourly calculations of required domestic assistance provided by medical p…
Boral Bricks Pty Ltd v Cosmidis (No 2)
[2014] NSWCA 139 Para 133

…In Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139 Basten JA stated as follows at [99]-[100]:…
Takla v Nasr
[2013] NSWCA 435 Para 119

…question to be determined prospectively by reference to the evidence: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [30]-[31]; Takla v Nasr [2013] NSWCA 435 at [71]. In Takla , McColl JA at [72]-[73] stated as follows:…
Marien v Gardiner
[2013] NSWCA 396 Para 114

…andard by which reasonable care is measured is an objective and impersonal one: Manley v Alexander (2005) 80 ALJR 413 at [11]-[12]; Marien v Gardiner [2013] NSWCA 396 at [33]-[37] per Meagher JA (with whom Macfarlan and Emmett JJA agreed.…
Wallace v Kam
[2013] HCA 19 Para 125

…rinciples to apply in relation to Section 5D are set out in the following cases: Strong v Woolworths Ltd (2012) 246 CLR 182 at [18] and Wallace v Kam (2013) 250 CLR 375 at [16]-[19].…
Strong v Woolworths Ltd
[2012] HCA 5 Para 125

…The relevant principles to apply in relation to Section 5D are set out in the following cases: Strong v Woolworths Ltd (2012) 246 CLR 182 at [18] and Wallace v Kam (2013) 250 CLR 375 at [16]-[19].…
Stojan (No 9) Pty Ltd v Kenway
[2009] NSWCA 364 Para 132

…At paragraphs 144-146 of Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 McColl JA (with whom Ipp and Basten JJA agreed) stated as follows:…
Adeels Palace Pty Ltd v Moubarak
[2009] HCA 48 Para 119

…f the matters set out in Section 5B. That is a question to be determined prospectively by reference to the evidence: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [30]-[31]; Takla v Nasr [2013] NSWCA 435 at [71]. In Takla , McColl JA at [72]-[73] stated as follows:…
Gordon Martin Pty Ltd v State Rail Authority of New South Wales & Anor
[2009] NSWCA 287 Para 39

…orts Reports 81-815 at [68]–[70]); per Ipp JA (Giles JA and Hunt AJA agreeing); see also Gordon Martin Pty Ltd v State Rail Authority (NSW) [2009] NSWCA 287 (at [39]–[41]) per Beazley JA (Giles and Ipp JJA agreeing). [146]The question whether a person has been guilty of contributory negligence is determined objecti…
Hawthorne v Hillcoat
[2008] NSWCA 340 Para 47

…be able to take reasonable steps to react to such events. As Hodgson JA (Ipp JA and Gyles AJA agreeing) said in Hawthorne v Hillcoat [2008] NSWCA 340 at [47], the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle. [37]Nor i…
New South Wales v Fahy
[2007] HCA 20 Para 57

…ther road users: Wyong Shire Council v Shirt [1980] HCA 12 ; 146 CLR 40 at 47–48; Vairy at [60], [105], [124] and [126]; New South Wales v Fahy [2007] HCA 20; 232 CLR 486 at [57]. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant an…
Manley v Alexander
[2005] HCA 79 Para 114

…the case. Under the common law and the CLA, the standard by which reasonable care is measured is an objective and impersonal one: Manley v Alexander (2005) 80 ALJR 413 at [11]-[12]; Marien v Gardiner [2013] NSWCA 396 at [33]-[37] per Meagher JA (with whom Macfarlan and Emmett JJA agreed.…
Consolidated Broken Hill Ltd v Edwards
[2005] NSWCA 380

…he knowledge that society may come under obligations of various kinds to him if the risk is realized”: Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports 81-815 at [68]–[70]); per Ipp JA (Giles JA and Hunt AJA agreeing); see also Gordon Martin Pty Ltd v State Rail Authority (NSW) [20…
Joslyn v Berryman
[2003] HCA 34 Para 16

…d been guilty of contributory negligence: Gordon Martin Pty Ltd v State Rail Authority (NSW) (at [42]); Joslyn v Berryman [2003] HCA 34 ; (2003) 214 CLR 552 (at [16], [18]) per McHugh J; Flower v Ebbw Vale St, Iron and Coal Co Ltd [1936] AC 206 (at 216); Commissioner for Railways v Halley (1978) 20 ALR 409 (at 419).…
Johnson v Nominal Defendant
[2003] NSWCA 153 Para 122

…having regard to my factual findings. In arriving at this conclusion I have taken into account the comments of Ipp JA in Johnson v Nominal Defendant [2003] NSWCA 153 but find that I am able to infer a failure by Mr Dow to properly control the tractor for the reasons set out in my factual findings.…
Graham Barclay Oysters Pty Ltd v Ryan
[2002] HCA 54

…onour could determine what a reasonable response to that risk would be: Dederer (at [18], [59]) per Gummow J; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54 ; (2002) 211 CLR 540 (at [192]) per Gummow and Hayne JJ. His Honour identified that risk (at [57]) as MTK’s insolvency preventing her from getting her…
Derrick v Cheung
[2001] HCA 48 Para 13

…is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident: Derrick v Cheung [2001] HCA 48 ; 181 ALR 301 at [13]. The exercise of reasonable care requires, as the majority observed in Manley v Alexander at [11], “reasonable attention to all that…
Schellenberg v Tunnel Holdings Pty Ltd
[2000] HCA 18 Para 109

…e injury results from an alleged defect in a vehicle or machine exclusively in the control of the defendant: Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 at [87] and [108] and relevant footnotes 98, 130 and 136 cf Henderson v Henry E Jenkins & Sons [1970] AC 282.…
Cook v Cook
[1986] HCA 73

…Under the common law and the Civil Liability Act, the standard by which reasonable care is measured is an objective and impersonal one: Cook v Cook [1986] HCA 73; 162 CLR 376; s 5B. [34]The question whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonabl…
Anchor Products Ltd v Hedges
[1966] HCA 70 Para 110

…evidence pursuant to which a breach of duty of care may be inferred from evidence of the occurrence of the accident itself: Anchor Products v Hedges (1966) 115 CLR 493. In Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 Gleeson CJ and McHugh J at [25] seemed to support the view that a plaintiff may rely on…
Mummery v Irvings Pty Ltd
[1956] HCA 45 Para 109

…shift in the legal onus of proof to the defendant to disprove the plaintiff’s case if the plaintiff relies on res ipsa loquitor : Mummery v Irvings (1956) 96 CLR 99. That is the case even where, as here, the injury results from an alleged defect in a vehicle or machine exclusively in the control of the defendant: S…
Wyong Shire Council v Shirt
[1980] HCA 12

…ve done, if anything, by way of response to any foreseeable risks of injury or sources of danger to other road users: Wyong Shire Council v Shirt [1980] HCA 12 ; 146 CLR 40 at 47–48; Vairy at [60], [105], [124] and [126]; New South Wales v Fahy [2007] HCA 20; 232 CLR 486 at [57]. A person is not negligent in fai…
[1970] AC 282
[1970] AC 282 Para 109

…lenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 at [87] and [108] and relevant footnotes 98, 130 and 136 cf Henderson v Henry E Jenkins & Sons [1970] AC 282.…
[1946] 1 KB 114
[1946] 1 KB 114

…Ipp JA (Heydon and Santow JJA agreeing) in Cole at [61], citing Grove v Elphick (1985) 2 MVR 74 and Morris v Luton Corporation [1946] 1 KB 114. Derrick v Cheung was such a case. An unattended infant child emerged from between two parked cars and darted into the path of the vehicle. The driver was not negligent de…
[1936] AC 206
[1936] AC 206

…(at [42]); Joslyn v Berryman [2003] HCA 34 ; (2003) 214 CLR 552 (at [16], [18]) per McHugh J; Flower v Ebbw Vale St, Iron and Coal Co Ltd [1936] AC 206 (at 216); Commissioner for Railways v Halley (1978) 20 ALR 409 (at 419).…

Legislation cited in this decision · 1

Civil Liability Act 2002 (TAS)
1 mention (from Para 1)

Medium Neutral Citation:	Lee v Dow [2017] NSWDC 220
Hearing dates:	22 – 23 May 2017; 3 August 2017
Date of orders:	17 August 2017
Decision date:	17 August 2017
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the plaintiff against the defendant in the sum of $119,854.50. (2) The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed. (3) Liberty to apply in relation to costs. (4) Exhibits to be returned after 28 days.
Catchwords:	Torts – negligence – plaintiff injured when tractor driven by the defendant reversed through a fence – whether defendant breached duty of care - res ipsa loquitor– whether alleged warning causatively relevant - extent of plaintiff’s injuries – future care
Legislation Cited:	Civil Liability Act 2002 (NSW)
Cases Cited:	Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 Anchor Products v Hedges (1966) 115 CLR 493 Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139 Henderson v Henry E Jenkins & Sons [1970] AC 282 Johnson v Nominal Defendant [2003] NSWCA 153 Manley v Alexander (2005) 80 ALJR 413 Marien v Gardiner [2013] NSWCA 396 Mummery v Irvings (1956) 96 CLR 99 Sampco Pty Ltd v Wurth [2015] NSWCA 117 Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 Strong v Woolworths Ltd (2012) 246 CLR 182 Takla v Nasr [2013] NSWCA 435 Wallace v Kam (2013) 250 CLR 375
Category:	Principal judgment
Parties:	Honor Lee (Plaintiff) Robert Dow (Defendant)
Representation:	Counsel: M McAuley M Cleary Solicitors: Paul A Curtis & Co (Plaintiff) Foleys Lawyers (Defendant)
File Number(s):	2016/00112821