Metrolink Victoria Pty Ltd v Inglis - [2009] VSCA 227

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2008 3729

METROLINK VICTORIA PTY LTD

(ACN 085 719 053)

Appellant/Plaintiff

RYAN INGLIS

Respondent/Defendant

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JUDGES:	NEAVE and REDLICH JJA and WILLIAMS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 February 2009
DATE OF JUDGMENT:	2 October 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 227
JUDGMENT APPEALED FROM:	Metrolink Victoria Pty Ltd v Ryan Inglis [2008] VSC 10 (Smith J)

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DAMAGES – Tort – Collision between car and tram – Remoteness – Test of remoteness for damages – Characterisation of loss – Identification of kind or genus of loss – Lost profit under contract contingent on operation of tram network – Whether recoverable – Whether losses too remote a consequence of the collision – Whether losses of a kind reasonably foreseeable.

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APPEARANCES:	Counsel	Solicitors
For the Appellant/Plaintiff	Mr A G Uren QC with Mr J P Brett	Deacons
For the Respondent/Defendant	Mr J Ruskin QC with Mr A N Murdoch	Ligeti Partners Lawyers

NEAVE JA:

I have had the advantage of reading the draft reasons for judgment of Redlich JA. I agree with his Honour, for the reasons given by him, that the characterisation of the kind or genus of loss suffered by the appellant was a question of law and not of fact.

However contrary to Redlich JA’s view I consider that the learned Magistrate did not err in characterising the kind or genus of loss suffered by Metrolink as:

the reduction of a financial benefit payable by a third party to the plaintiff or the imposition of a financial penalty upon the plaintiff by a third party.

My reasons follow.

In Mount Isa Mines Pty Ltd v Pusey,[1] Windeyer J commented that the test of reasonable foreseeability of harm applies both in determining whether a person owes a duty of care to avoid negligently causing loss to others (the ‘liability question’), and, if a defendant is held to have breached a duty of care owed to the plaintiff, in determining whether the kind of injury suffered by the plaintiff was too ‘remote’ to be compensable (the ‘remoteness question’).[2]
[1](1970) 125 CLR 383, 397, Barwick CJ at 389 appears to have treated the case as raising the question of liability, whilst Menzies J at 392, Windeyer J at 401 and Walsh J at 413, treated the question whether the plaintiff could recover damages for a mental illness caused by seeing a fellow employee seriously burned as raising an issue of remoteness of damage.
[2]See also Rowe v Mc Cartney (1976) 2 NSWLR 72, 83 (Samuels JA).

If Metrolink’s loss arising from the terms of the Franchise Agreement had been characterised as ‘pure economic loss’ the first question for decision would have been the liability question, that is whether the appellant owed it a duty of care to avoid causing such economic loss. If no such duty of care arose, the remoteness question, that is whether the loss was too remote, would never have…

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.

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Details

Case: [2009] VSCA 227
Decision Date: 2 October 2009

CaseChat Overview and Summary

In the case of Metrolink Victoria Pty Ltd v Inglis, the plaintiff, Metrolink Victoria, sought damages for losses it suffered following a collision between one of its trams and a car driven by the defendant, Inglis. The dispute arose from the question of whether certain losses incurred by Metrolink Victoria, specifically lost profits under a contract contingent on the operation of the tram network, were recoverable under the tort of negligence. The case was heard in the Supreme Court of Victoria.

The primary legal issues before the court were whether the losses suffered by Metrolink Victoria were of a kind reasonably foreseeable as a consequence of the collision, and whether they were recoverable under the applicable principles of remoteness of damages. The court had to determine whether the losses were too remote a consequence of the collision and whether they could be characterised as a kind of loss that was reasonably foreseeable.

The court held that the losses suffered by Metrolink Victoria were not too remote a consequence of the collision. It found that the losses were of a kind reasonably foreseeable, as the operation of the tram network was directly impacted by the collision. The court further held that the lost profits under the contract were a direct result of the disruption to the tram network, which was a foreseeable consequence of the collision. As such, the losses were not too remote to be recoverable.

The court ordered that the defendant, Inglis, pay damages to Metrolink Victoria for the lost profits under the contract, as well as any other losses directly caused by the collision. The specific amount of damages was to be determined in further proceedings.

Orders