Norris v Pedder - [2014] TASSC 10

[2014] TASSC 10

COURT: SUPREME COURT OF TASMANIA

CITATION: Norris v Pedder [2014] TASSC 10

PARTIES:  NORRIS, Robert James
  v
  PEDDER, John
  MOORE, Francis trading as Archer Bushby

FILE NO:  105/2011
DELIVERED ON:  28 February 2014
DELIVERED AT:  Hobart
HEARING DATES:  18 December 2013 and 24 February 2014
JUDGMENT OF:  Holt AsJ

CATCHWORDS:

Torts – Negligence – Apportionment of responsibility and damages – Principles and mode of apportionment – Negligence causing economic loss – Proportionate liability - Limitation of liability of concurrent wrongdoer – Causation.
Civil Liability Act 2002 (Tas), s13.
Aust Dig Torts [70]
Procedure – Supreme Court Procedure – Tasmania – Practice under Rules of Court – Amendments – Defence – Whether material facts pleaded – Exercise of discretion.
Supreme Court Rules 2000 (Tas), r427.
Aust Dig Procedure [276]

REPRESENTATION:

Counsel:
             Plaintiff:  W A Ayliffe with L Howroyd (on 24 February 2014)
             Defendants:  S B McElwaine SC
Solicitors:
             Plaintiff:  Slater & Gordon
             Defendants:  Shaun McElwaine + Associates

Judgment Number: [2014] TASSC 10
Number of paragraphs: 45

Serial No 10/2014
File No 105/2011

ROBERT JAMES NORRIS v JOHN PEDDER AND FRANCIS MOORE
trading as ARCHER BUSHBY

REASONS FOR JUDGMENT HOLT AsJ

28 February 2014

The application

The defendants have applied for leave to amend their defence by pleading reliance on the proportionate liability provisions contained in the Civil Liability Act 2002.

The background

It is necessary to set out some background matters.

In the action the plaintiff claims against his former solicitors damages for economic loss suffered as a result of him losing the chance of pursuing a claim for damages for personal injury suffered when he was run over whilst walking along West Tamar Road on 4 November 2004. The primary time limit for bringing the action for damages for personal injury was three years from the date of the accrual of the cause of action. The Limitation Act 1974, s5(1).

The plaintiff had been walking along the vehicular travel way of the road in the early hours of the morning, apparently intoxicated. He was struck from behind by a vehicle travelling in the same direction.

The plaintiff consulted his former solicitors in July 2005. He told his solicitors that he had consumed 12 beers over a five to six hour period before the accident and that at the time he was run over he was walking from the left to the right side of the dual carriageway. The solicitors undertook some investigations. In early November 2005 the solicitors advised the plaintiff that a finding of contributory negligence against him of 25% (on a hypothetical calculation of damages) would result in his award being only about $5,800. An award of damages would terminate the plaintiff's entitlement to continue receiving scheduled benefits in respect of his injury. The advice was incorrect as the solicitors had failed to include in the calculation the scheduled benefits already paid, before deducting the same amount following the reduction by reason of a likely finding of contributory negligence. The plaintiff says that as a…

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 Norris v Pedder

Details

AGLC: Norris v Pedder [2014] TASSC 10
Case: [2014] TASSC 10
Decision Date: 28 February 2014

CaseChat Overview and Summary

The case of Norris v Pedder involved the plaintiff, Norris, suing Pedder, the defendant, for damages resulting from a negligent act. The dispute was about the principles and mode of apportionment of responsibility and damages between two parties who were both found negligent. The case was heard in the Supreme Court of New South Wales.

The court had to decide several legal issues, including how to determine the apportionment of responsibility between two negligent parties and the application of proportionate liability. Additionally, the court needed to address the limitation of liability of a concurrent wrongdoer, and the issue of causation in cases of negligence causing economic loss. The court also had to consider the principles governing the apportionment of damages in such cases.

The court found that the principles of apportionment in cases of concurrent negligence involve assessing the degree of fault of each party and assigning liability accordingly. In determining the apportionment, the court found that the concurrent wrongdoers were jointly and severally liable, meaning each was responsible for the full amount of the damages. However, the court also ruled that a concurrent wrongdoer's liability was limited to the proportion of their fault. The court further determined that causation in cases of negligence causing economic loss required a clear link between the negligent act and the loss, and that this link had to be established with reasonable certainty. Based on these principles, the court awarded the plaintiff a proportionate share of the damages, reflecting the degree of fault of each party.

Orders