Melbourn v Stephenson

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.