Nominal Defendant v Stephens - [2011] NSWCA 312

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Nominal Defendant v Stephens [2011] NSWCA 312
Hearing dates: 6 September 2011
Decision date: 19 October 2011
Before: Giles JA at [1]
Whealy JA at [2]
Hall J at [88]
Decision:
Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
TORTS - NEGLIGENCE - plaintiff hit by unidentified truck whilst on highway - plaintiff intoxicated at time of accident - whether primary judge dealt adequately with cause of accident - whether primary judge advanced reasons as to what negligent driver should have done to avoid accident - whether evidence available that evasive action could have been taken by driver - whether primary judge gave adequate reasons.
TORTS - CONTRIBUTORY NEGLIGENCE - whether primary judge's apportionment should be overturned.
Legislation Cited: Motor Accidents Compensation Act 1999 s 138
Law Reform (Miscellaneous Provisions) Act 1965 s 9
Cases Cited: Mifsud v Campbell (1991) 21 NSWLR 725 at 728
Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 431
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278 - 279
Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 666 - 667
Dobler v Halverson (BHT Kenneth Halverson) [2007] NSWCA 335; 70 NSWLR 151 at [71] per Giles JA
Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALR 529 at 532 - 533
Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; 234 CLR 330 at 379 per Kirby J
Turkmani v Visvalingam & Ors [2009] NSWCA 211; 53 MVR 176 per Beazley JA
Category: Principal judgment
Parties: Nominal Defendant (Appellant / Cross Respondent)
Rosalie Ann Stephens (Respondent/Cross Appellant)
Representation: K Rewell SC / D Wilson (Appellant)
DE Grieve QC / G Radburn (Respondent)
Moray & Agnew (Appellant)
Somerville Laundry Lomax (Respondent)

File Number(s): CA 2010/400849
Publication restriction: Nil
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2010-11-05 00:00:00

Before:

Blanch DCJ

File Number(s):

DC 50/09

Judgment

GILES JA : I agree with Whealy JA.

WHEALY JA :

An overview - a woman is struck by a truck

On Friday 3 rd August 2007, Rosalie Stephens (the respondent) went fishing with her partner, John Crisp. They went to the Clarence River near the Harwood Island Bridge, and fished there, without a great deal of success, until about 8pm. The couple then went to the local hotel where the respondent consumed a fair quantity of alcohol. The couple had an argument and the respondent walked off into the night on her own. According to her evidence, she walked along the highway and…

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 Nominal Defendant v Stephens

Details

AGLC: Nominal Defendant v Stephens [2011] NSWCA 312
Case: [2011] NSWCA 312
Decision Date: 19 October 2011

CaseChat Overview and Summary

The Nominal Defendant appealed to the Court of Appeal of New South Wales against a judgment of the Supreme Court of New South Wales. The plaintiff, Mr. Stephens, had been injured when he was struck by an unidentified truck while he was on a highway. At the time of the accident, Mr. Stephens was intoxicated. The primary judge had found the unidentified driver negligent and awarded damages to the plaintiff.

The appeal raised questions concerning the adequacy of the primary judge's reasons for finding negligence. Specifically, the Nominal Defendant argued that the primary judge had not adequately dealt with the cause of the accident, nor had the judge provided sufficient reasons as to what the negligent driver should have done to avoid the collision. The appellant also contended that there was insufficient evidence to establish that evasive action could have been taken by the driver. Furthermore, the Nominal Defendant challenged the primary judge's apportionment of contributory negligence.

The Court of Appeal considered the primary judge's findings in light of the evidence presented. The Court found that the primary judge had adequately addressed the cause of the accident and had provided sufficient reasoning regarding the expected conduct of the driver. The Court also determined that there was evidence upon which the primary judge could conclude that evasive action was possible. Regarding contributory negligence, the Court found no error in the primary judge's apportionment.

The appeal was dismissed, and the Nominal Defendant was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

HALL J

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Ratio Decidendi

Legal Principle Established

Established by: HALL J

Full text does not contain this section.

Medium Neutral Citation:	Nominal Defendant v Stephens [2011] NSWCA 312
Hearing dates:	6 September 2011
Decision date:	19 October 2011
Before:	Giles JA at [1] Whealy JA at [2] Hall J at [88]
Decision:	Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	TORTS - NEGLIGENCE - plaintiff hit by unidentified truck whilst on highway - plaintiff intoxicated at time of accident - whether primary judge dealt adequately with cause of accident - whether primary judge advanced reasons as to what negligent driver should have done to avoid accident - whether evidence available that evasive action could have been taken by driver - whether primary judge gave adequate reasons. TORTS - CONTRIBUTORY NEGLIGENCE - whether primary judge's apportionment should be overturned.
Legislation Cited:	Motor Accidents Compensation Act 1999 s 138 Law Reform (Miscellaneous Provisions) Act 1965 s 9
Cases Cited:	Mifsud v Campbell (1991) 21 NSWLR 725 at 728 Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 431 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278 - 279 Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 666 - 667 Dobler v Halverson (BHT Kenneth Halverson) [2007] NSWCA 335; 70 NSWLR 151 at [71] per Giles JA Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALR 529 at 532 - 533 Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; 234 CLR 330 at 379 per Kirby J Turkmani v Visvalingam & Ors [2009] NSWCA 211; 53 MVR 176 per Beazley JA
Category:	Principal judgment
Parties:	Nominal Defendant (Appellant / Cross Respondent) Rosalie Ann Stephens (Respondent/Cross Appellant)
Representation:	K Rewell SC / D Wilson (Appellant) DE Grieve QC / G Radburn (Respondent) Moray & Agnew (Appellant) Somerville Laundry Lomax (Respondent)
File Number(s):	CA 2010/400849
Publication restriction:	Nil
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2010-11-05 00:00:00 Before: Blanch DCJ File Number(s): DC 50/09