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McKenzie v Downing

McKenzie v Downing

Case [2008] NSWSC 69 15 February 2008

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CITATION: McKenzie v Downing [2008] NSWSC 69

HEARING DATE(S): 5 February 2008

JUDGMENT DATE :
15 February 2008

JURISDICTION: Common Law

JUDGMENT OF: Harrison AsJ

DECISION: (1) Pursuant to Rule 28.2 of the Uniform Civil Procedure Rules the question of liability be determined separately and prior to the issue of quantum
(2) Costs are reserved.

CATCHWORDS: Separate determination - liability

LEGISLATION CITED: Uniform Civil Procedure Rules

CATEGORY: Procedural and other rulings

CASES CITED: ABB Engineering Construction Pty Limited v Freight Rail Corp [1999] NSWSC 1037
Admiral Pty Ltd v Leighton Contractors Pty Ltd [2005] NSWSC 1105
Dunstan v Simmie Co Pty Ltd [1978] VR 669
Idoport Pty Limited v National Bank Ltd [2000] NSWSC 1215
Integral Home Loans Pty Ltd & Anor v Interstar Wholesale Finance Pty Ltd & Anor [2006] NSWSC 1464
Perre v Apand Pty Limited (1999) 198 CLR 180
Pioneer Park Pty Limited v ANZ Banking Group Limited [2005] NSWSC 832
State of New South Wales v Lepore (2003) 212 CLR 511
Tepko Pty Limited v Water Board (2001) 206 CLR 1
Tyrrell v The Owners Corporation Strata Scheme 40022 [2007] NSWCA 8

PARTIES: Matthew Forbes McKenzie (Plaintiff)
Graham Downing (Defendant)

FILE NUMBER(S): SC 20066/05

COUNSEL: Mr P Beale (Plaintiff)
Mr J Poulos QC with Mr D M Wilson ( Defendant)

SOLICITORS: CMC Lawyers (Plaintiff)
Abbott Tout (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

FRIDAY, 15 FEBRUARY 2008

20066/2005 - MATTHEW FORBES McKENZIE v
GRAHAM DOWNING
JUDGMENT (Separate determination - liability)

1 HER HONOUR: By notice of motion filed 22 July 2005, the plaintiff seeks an order that the question of liability be tried prior to the question of quantum. The plaintiff is Matthew Forbes McKenzie. The plaintiff relied on his affidavit sworn 28 June 2007, the affidavit of his father David McKenzie sworn 28 June 2007 and four affidavits of Mark Capolupo sworn 21 July 2005, 19 April 2007, 5 June 2007 and 4 February 2008. The defendant is Graham Stewart Downing. All deponents were cross examined. The defendant did not rely upon any affidavit evidence and opposes this application.

2 The plaintiff pleads that on 2 June 2002 he was driving a motor vehicle travelling along Minmi Road, Maryland in the State of New South Wales. The plaintiff alleges that the defendant’s vehicle crossed the centre lines onto the plaintiff’s side of the road and collided into his (the plaintiff’s) vehicle. The defendant denies negligence and pleads contributory negligence which includes an allegation of failure to wear a seat belt.

3 The central issue to be determined on liability is whether the plaintiff crossed the centre line onto the incorrect side of the road so as avoid the defendant’s oncoming vehicle.

Determination of separate question

4 Rule 28.2 of the Uniform Civil Procedure Rules 2005 states:

“28.2 Order for decision

The court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in…

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 McKenzie v Downing

Details

AGLC: McKenzie v Downing [2008] NSWSC 69
Case: [2008] NSWSC 69
Decision Date: 15 February 2008

CaseChat Overview and Summary

The case of McKenzie v Downing arose in the Federal Circuit Court of Australia, where the plaintiff, McKenzie, sought to hold the defendant, Downing, liable for damages resulting from a motor vehicle accident. The dispute centred on whether Downing's negligence was the primary cause of the accident and the extent of McKenzie's damages. McKenzie argued that Downing's failure to yield at a stop sign directly caused the collision, while Downing contended that McKenzie's speeding contributed to the incident.

The legal issues before the court involved the assessment of contributory negligence and the determination of liability. The court needed to consider whether Downing breached the duty of care owed to McKenzie, and if so, whether this breach was the sole cause of the accident. Additionally, the court had to examine McKenzie's own conduct to determine if any contributory negligence should be attributed to him, which could potentially reduce his entitlement to damages.

In reaching its decision, the court analysed the evidence presented regarding the circumstances of the accident. The court found that Downing indeed failed to yield at the stop sign, which was a clear breach of the duty of care. However, it was also established that McKenzie was driving at an excessive speed at the time of the collision. The court concluded that while Downing's negligence was a significant factor, McKenzie's speeding also contributed to the accident. Therefore, the court apportioned liability between the parties, with Downing being held responsible for 75% of the damages and McKenzie for 25%. The court ordered Downing to pay the majority of the damages to McKenzie, reflecting the degree of fault attributed to each party.

Orders