Lee v McGrath

[2019] ACTCA 6

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Lee v McGrath

Citation:

[2019] ACTCA 6

Hearing Date:

12 February 2019

DecisionDate:

28 March 2019

Before:

Mossop, Rangiah JJ and Robinson AJ

Decision:

The appeal is dismissed with costs.

Catchwords:

NEGLIGENCE – BREACH OF DUTY OF CARE – whether trial judge erred in finding that the respondent had failed to keep a proper lookout – he did not

NEGLIGENCE – CAUSATION – whether trial judge erred in finding that the accident was unavoidable – he did not

NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – whether trial judge erred in his process of reasoning by considering irrelevant New South Wales law – whether trial judge erred in his apportionment of liability – he did not

Legislation Cited:

Civil Law (Wrongs) Act 2002 (ACT), ss 45, 46, 102

Supreme Court Act 1933 (ACT), s 37E(2)(a)

Cases Cited:

Branir v Owston Nominees (No 2) [2001] FCA 1833; 117 FCR 424 Derrick v Cheung [2001] HCA 48; 181 ALR 301

Fox v Percy [2003] HCA 22; 214 CLR 118
Manley v Alexander [2005] HCA 79; 80 ALJR 413
Pennington v Norris (1956) 96 CLR 10
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529

Vale v Eggins [2006] NSWCA 348

Parties:

Grant Lee by his litigation guardian, the NSW Trustee and Guardian (Appellant)

Mikaela Anne McGrath (Respondent)

Representation:

Counsel

C Barry QC with J Ronald (Appellant)

K Rewell SC (Respondent)

Solicitors

KJB Law (Appellant)

Sparke Helmore Lawyers (Respondent)

File Number:

ACTCA 34 of 2018

Decision under appeal: 

Court/Tribunal:             Supreme Court of the ACT

Before:  Elkaim J

Date of Decision:          14 June 2018

Case Title:  Lee v McGrath

Citation: [2018] ACTSC 173

THE COURT:

Background to appeal

1. Grant Lee, by his litigation guardian, was the plaintiff in an action in the Supreme Court for personal injuries suffered as a result of being struck by a motor vehicle driven by the defendant, Mikaela McGrath.

1. The trial judge concluded that the plaintiff had not proved that the defendant was negligent and, accordingly, entered a verdict for the defendant. In the event that he was in error as to the proof of negligence, the trial judge went on to make two further findings. The trial judge found that the plaintiff's contributory negligence should be assessed at 75% and that quantum should be assessed in the sum of $8,871,158 before deduction for contributory negligence.

1. The plaintiff has appealed to this Court against the conclusion on negligence and also on the apportionment concerning contributory negligence. There is no dispute between the parties as to quantum of damages.

1. In these reasons, we will continue to refer to the parties as plaintiff and defendant for convenience.

Jurisdiction of the Court of Appeal

1. The jurisdiction to entertain an appeal to the Court of Appeal is relevantly given by s 37E(2)(a) of the Supreme Court Act 1933 (ACT). The appeal is not explicitly expressed to be by way of rehearing, however, it was common ground…