Melbourn v Stephenson - [2002] NSWCA 403

CITATION: Melbourn v Stephenson [2002] NSWCA 403

FILE NUMBER(S): CA 40907/01

HEARING DATE(S): 9 August 2002,
18 November 2002

JUDGMENT DATE:
17 December 2002

PARTIES :

Clay Corrie Melbourn (Appellant)
Lydia May Stephenson (Respondent)

JUDGMENT OF: Handley JA at 1; Stein JA at 15; Brownie AJA at 63

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : DC 8876/97

LOWER COURT
JUDICIAL OFFICER : Coleman DCJ

COUNSEL: P Hallen SC/ J Young (Appellant)
A J Leslie QC (Respondent)

SOLICITORS: Staunton & Thompson (Appellant)
Steve Masselos & Co (Respondent)

CATCHWORDS: NEGLIGENCE - CAUSATION - balance of probabilities test is not satisfied by evidence that does no more than establish a possibility - effect of death of alleged tortfeasor on plaintiff's ability to recover damages where tort is subsequent to the death of tortfeasor - survival of action in negligence against the estate of the deceased under the Law Reform (Miscellaneous Provisions) Act 1944, s 2(4) - interaction of Law Reform (Miscellaneous Provisions) Act, s 2(4) with the Wills, Probate and Administration Act 1898, ss 92, 95 where estate fully administered - viability of claim against executor and beneficiaries of the estate - effect of s 95 of the Wills, Probate and Administration Act - whether possibility of an equitable right of action against beneficiaries of the estate arises - ND

LEGISLATION CITED: Law (Miscellaneous Provisions) Act 1944, s 2(4)
Real Property Act 1900
Wills, Probate and Administration Act 1898, ss 92, 95

CASES CITED:
Deputy Federal Commissioner of Taxation v Brown (1958) 100 CLR 32
Ministry of Health v Simpson [1951] AC 251
Seltsam v McGuiness [2000] 49 NSWLR 262
Taylor v Deputy Commissioner of Taxation (1969) 123 CLR 206

DECISION: 1) Appeal allowed with costs, the respondent to have a certificate under the Suitor's Fund Act if otherwise entitled; 2) Set aside his Honour's verdict and orders in favour of the respondent against the appellant and substitute therefor a verdict for the defendant with costs.

CA 40907/01
DC 8876/97

HANDLEY JA
STEIN JA
BROWNIE AJA
Tuesday, 17 December 2002

Clay Corrie MELBOURN v Lydia May STEPHENSON

Facts

In 1996 the respondent Lydia May Stephenson was injured in a fall from an elevated deck attached to a house. At trial, Coleman DCJ found that the fall was the result of the negligent failure of Warren Reginald Melbourn, deceased at the time of the accident, to check the structural integrity of the deck, which would have exhibited signs of dry rot when he painted it. The respondent’s cause of action against the deceased accrued after his death and the Law Reform (Miscellaneous Provisions) Act 1944 applies. The respondent was awarded damages against Clay Corrie Melbourn, executor and primary beneficiary of the estate.

The appellant challenges the finding of negligence against the deceased, and, in the event that the finding of negligence is upheld, challenges whether the appellant is liable in either his capacity as executor or beneficiary of the estate for those damages, given that the estate had been completely…

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 Melbourn v Stephenson

Details

AGLC: Melbourn v Stephenson [2002] NSWCA 403
Case: [2002] NSWCA 403
Decision Date: 17 December 2002

CaseChat Overview and Summary

In *Melbourn v Stephenson*, the appellant, Ms. Melbourn, appealed to the New South Wales Court of Appeal against a decision of the primary judge who had found in favour of the respondent, Mr. Stephenson, in a claim for damages for negligence. The dispute concerned the ability of the plaintiff to recover damages from the estate of a deceased tortfeasor, particularly where the estate had been fully administered.

The central legal issues before the Court of Appeal were: firstly, whether the evidence adduced by the plaintiff satisfied the balance of probabilities test for causation in a negligence claim; and secondly, the extent to which an action in negligence could survive against the estate of a deceased tortfeasor under the *Law Reform (Miscellaneous Provisions) Act 1944* (NSW), and its interaction with the *Wills, Probate and Administration Act 1898* (NSW), especially where the estate had been fully administered. The court also considered the viability of claims against the executor and beneficiaries of the estate, and the potential for an equitable right of action against beneficiaries.

The Court of Appeal held that the evidence presented by the plaintiff did not establish causation on the balance of probabilities, as it only demonstrated a possibility rather than a likelihood of the alleged negligence causing the loss. Furthermore, the court determined that once an estate has been fully administered, a claim in negligence against the executor personally, or against beneficiaries under s 95 of the *Wills, Probate and Administration Act 1898*, would not be viable in the circumstances presented. The court found that the survival provisions of the *Law Reform (Miscellaneous Provisions) Act 1944* did not extend to permit a claim against beneficiaries of a fully administered estate in this context.

Consequently, the Court of Appeal allowed the appeal, set aside the verdict and orders in favour of the respondent, and substituted a verdict for the defendant with costs. The respondent was to have a certificate under the Suitor's Fund Act if otherwise entitled.

Orders

Orders of the court

1) Appeal allowed with costs, the respondent to have a certificate under the Suitor's Fund Act if otherwise entitled; 2) Set aside his Honour's verdict and orders in favour of the respondent against the appellant and substitute therefor a verdict for the defendant with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Melbourn v Stephenson [2002] NSWCA 403
FILE NUMBER(S):	CA 40907/01
HEARING DATE(S):	9 August 2002, 18 November 2002
JUDGMENT DATE:	17 December 2002
PARTIES :	Clay Corrie Melbourn (Appellant) Lydia May Stephenson (Respondent)
JUDGMENT OF:	Handley JA at 1; Stein JA at 15; Brownie AJA at 63

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 8876/97
LOWER COURT JUDICIAL OFFICER :	Coleman DCJ

COUNSEL:	P Hallen SC/ J Young (Appellant) A J Leslie QC (Respondent)
SOLICITORS:	Staunton & Thompson (Appellant) Steve Masselos & Co (Respondent)
CATCHWORDS:	NEGLIGENCE - CAUSATION - balance of probabilities test is not satisfied by evidence that does no more than establish a possibility - effect of death of alleged tortfeasor on plaintiff's ability to recover damages where tort is subsequent to the death of tortfeasor - survival of action in negligence against the estate of the deceased under the Law Reform (Miscellaneous Provisions) Act 1944, s 2(4) - interaction of Law Reform (Miscellaneous Provisions) Act, s 2(4) with the Wills, Probate and Administration Act 1898, ss 92, 95 where estate fully administered - viability of claim against executor and beneficiaries of the estate - effect of s 95 of the Wills, Probate and Administration Act - whether possibility of an equitable right of action against beneficiaries of the estate arises - ND
LEGISLATION CITED:	Law (Miscellaneous Provisions) Act 1944, s 2(4) Real Property Act 1900 Wills, Probate and Administration Act 1898, ss 92, 95
CASES CITED:	Deputy Federal Commissioner of Taxation v Brown (1958) 100 CLR 32 Ministry of Health v Simpson [1951] AC 251 Seltsam v McGuiness [2000] 49 NSWLR 262 Taylor v Deputy Commissioner of Taxation (1969) 123 CLR 206
DECISION:	1) Appeal allowed with costs, the respondent to have a certificate under the Suitor's Fund Act if otherwise entitled; 2) Set aside his Honour's verdict and orders in favour of the respondent against the appellant and substitute therefor a verdict for the defendant with costs.