Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: The Nominal Defendant v Buck Cooper [2017] NSWCA 280 Hearing dates: 07 September 2017 Decision date: 03 November 2017 Before: McColl JA at [1];
Payne JA at [22];
Garling J at [190]Decision: (1) appeal dismissed;
(2) the appellant pay the respondent’s costs of the appeal as agreed or assessed.Catchwords: NEGLIGENCE – motor vehicle accident – collision between two motorcycles, one driven by Mr Lamont and one driven by respondent – whether risk of occurrence was an “inherent risk” – whether Mr Lamont owed the respondent a duty of care
NEGLIGENCE – contributory negligence - whether primary judge erred in assessment of the culpability of respondent – whether primary judge erred in respect to factual findings of respondent’s level of intoxication, visibility, speed and auditory clues at the time of collisionLegislation Cited: Civil Liability Act 2002 (NSW)
Law Reform (Miscellaneous Provisions) Act 1965 (NSW)
Motor Accidents Compensation Act 1999 (NSW)Cases Cited: Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393; [2014] NSWCA 139
Commonwealth of Australia v Elliott [2004] NSWCA 360
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
Davis v Swift [2014] NSWCA 458; (2014) 69 MVR 375
Gala v Preston (1991) 172 CLR 243; [1991] HCA 18
Garzo v Liverpool / Campbelltown Christian School [2012] NSWCA 151
Gordon v Truong [2014] NSWCA 97; (2014) 66 MVR 241
Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA
Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19
Mead v Kearney [2012] NSWCA 215
Nominal Defendant v Green [2013] NSWCA 219; (2013) 64 MVR 354
Paul v Cook (2013) 85 NSWLR 167; [2013] NSWCA 311
Pennington v Norris (1956) 96 CLR 10; [1956] HCA 26
Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR; [1985] HCA 34
Rabay & Anor v Bristow [2005] NSWCA 199
Roads & Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42
Rolls Royce Industrial Power (Pacific) Limited v James Hardie & Coy Pty Ltd (2001) 53 NSWLR 626; [2001] NSWCA 461
Rootes v Shelton (1967) 116 CLR 383; [1967] HCA 39
Verryt v Schoupp [2015] NSWCA 128; (2015) 70 MVR 484
Wyong Shire Council v Vairy [2004] NSWCA 247Texts Cited: Barbara McDonald, “Legislative Intervention in the Law of Negligence: The Common Law, Statutory Interpretation and Tort Reform in Australia” (2005) 27 Sydney Law Review 443 Category: Principal judgment Parties: The Nominal Defendant (Appellant)
Buck Cooper (Respondent)Representation: Counsel:
Solicitors:
R Stitt QC / B Wilson (Appellant)
A Stone SC / S Warren (Respondent)
Holman Webb (Appellant)
Slater and Gordon (Respondent)
File Number(s): 2017/64872 Decision under appeal
- Court or tribunal:
- District Court…
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Details
- AGLC
- The Nominal Defendant v Buck Cooper [2017] NSWCA 280
- Case
- [2017] NSWCA 280
- Decision Date
CaseChat Overview and Summary
The appeal concerned a collision between two motorcycles, one ridden by the respondent, Mr Buck Cooper, and the other by Mr Lamont. The Nominal Defendant, as the insurer of Mr Lamont's vehicle, appealed a decision of the primary judge. The central dispute revolved around whether Mr Lamont owed the respondent a duty of care and whether the risk of the collision was an "inherent risk" of motorcycling.
The court was required to determine whether the primary judge had erred in finding that Mr Lamont owed a duty of care to the respondent. Further, the court had to consider whether the risk of the collision was an inherent risk for the purposes of the relevant legislation, which would potentially preclude a finding of negligence. The appeal also challenged the primary judge's assessment of the respondent's contributory negligence, specifically questioning factual findings regarding the respondent's intoxication, visibility, speed, and awareness of auditory clues at the time of the accident.
The appellate court dismissed the appeal, upholding the primary judge's findings. The court reasoned that Mr Lamont did owe a duty of care to the respondent, and that the risk of collision was not an inherent risk in the circumstances. The judges found no error in the primary judge's assessment of the respondent's culpability, including the factual findings relating to intoxication, visibility, speed, and auditory clues. Consequently, the appeal was dismissed.
The court was required to determine whether the primary judge had erred in finding that Mr Lamont owed a duty of care to the respondent. Further, the court had to consider whether the risk of the collision was an inherent risk for the purposes of the relevant legislation, which would potentially preclude a finding of negligence. The appeal also challenged the primary judge's assessment of the respondent's contributory negligence, specifically questioning factual findings regarding the respondent's intoxication, visibility, speed, and awareness of auditory clues at the time of the accident.
The appellate court dismissed the appeal, upholding the primary judge's findings. The court reasoned that Mr Lamont did owe a duty of care to the respondent, and that the risk of collision was not an inherent risk in the circumstances. The judges found no error in the primary judge's assessment of the respondent's culpability, including the factual findings relating to intoxication, visibility, speed, and auditory clues. Consequently, the appeal was dismissed.
Orders
Orders of the court
(1) appeal dismissed;
(2) the appellant pay the respondent’s costs of the appeal as agreed or assessed.
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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