Nrma v Smith - [2000] NSWCA 122

NEW SOUTH WALES COURT OF APPEAL

CITATION: NRMA v SMITH [2000] NSWCA 122

FILE NUMBER(S):
40701/98

HEARING DATE(S): 12 April 2000

JUDGMENT DATE: 25/05/2000

PARTIES:
NRMA INSURANCE LIMITED
v
RUSSELL EDWARD SMITH & MITCHELL BEARD

JUDGMENT OF: Mason P Handley JA Beazley JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 1/97

LOWER COURT JUDICIAL OFFICER: Ainslie-Wallace DCJ

COUNSEL:
D F Rofe QC/J P Guihot (Appellant)
L A Muston (1st Respondent)
M R Aldridge SC/L A Christie (2nd respondent)

SOLICITORS:
Hunt & Hunt Newcastle (Appellant)
Peter Long & Co Gunnedah (1st Respondent)
R J O'Halloran & Co Tamworth (2nd Respondent)

CATCHWORDS:
NEGLIGENCE - whether duty of care - foreseeability of risk - plaintiff jumped from cattle truck and caught ring on rough metal - finger amputation necessary - risk of such injury not foreseeable - risk far fetched or fanciful

LEGISLATION CITED:
Motor Accidents Act 1988 (NSW)
Motor Accidents (Amendment) Act 1995 (NSW)
Suitors Fund Act 1951 (NSW)

DECISION:
Appeal allowed - orders made

JUDGMENT:

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
40701/98
DC 1/97
MASON P
HANDLEY JA
BEAZLEY JA

25 May 2000
NRMA INSURANCE LIMITED
v
RUSSELL EDWARD SMITH & ANOR

NEGLIGENCE - whether duty of care - foreseeability of risk - plaintiff jumped from cattle truck and caught ring on rough metal - finger amputation necessary - risk of such injury not foreseeable - risk far fetched or fanciful
The respondent sustained a de-gloving injury to his left hand leading to the amputation of his left ring finger when he jumped from the headboard of a cattle truck and caught the wedding ring on that finger on some protrusion on the headboard. He sued the owner of the truck for negligence and joined the appellant third party insurer as the second defendant after it denied liability under the relevant policy.

The trial Judge found that the owner of the truck had been negligent, that there had been no contributory negligence, and awarded damages for non-economic loss representing 25% of the most extreme case in addition to components for past and future economic loss. The Judge also held that the plaintiff’s claim was covered by the compulsory third party policy because his injury fell within the definition of injury inserted in the Motor Vehicles Accident Act by the amending Act No 66 of 1995.

The insurer appealed challenging the Judge’s findings on negligence, damages and the scope of the policy.

HELD, allowing the appeal: (1) The finding of negligence against the first defendant cannot be supported as there was no evidence which supported the inference that the first defendant, who had only owned the truck for a few weeks, knew or ought to have known of the existence of metal protrusions, or of the danger posed by them. (2) An adverse finding on the credibility of the truck owner’s denials of knowledge regarding the existence of the protrusions does not prove the fact denied in the absence of other evidentiary material from which…

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 Nrma v Smith

Details

AGLC: Nrma v Smith [2000] NSWCA 122
Case: [2000] NSWCA 122
Decision Date: 25 May 2000

CaseChat Overview and Summary

The National Roads and Motorists' Association (NRMA) appealed a decision concerning a claim brought by Mr. Smith. Mr. Smith had suffered an injury when he jumped from a cattle truck and his ring caught on rough metal, necessitating the amputation of his finger. The dispute centred on whether the NRMA owed Mr. Smith a duty of care in relation to the condition of the cattle truck.

The central legal issue before the court was whether the risk of injury, of the kind sustained by Mr. Smith, was foreseeable. Specifically, the court had to determine if the risk of a person jumping from a cattle truck and catching their ring on rough metal was so remote as to be considered "far-fetched or fanciful."

The court reasoned that for a duty of care to arise, the risk of harm must be reasonably foreseeable. In this instance, the court found that the specific circumstances leading to Mr. Smith's injury – a person jumping from a cattle truck and their ring snagging on rough metal – were not a foreseeable risk. The court concluded that such an event was too improbable and speculative to impose a duty of care on the NRMA.

Consequently, the appeal was allowed, and the previous orders were set aside.

Orders

Orders of the court

Appeal allowed - orders made

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.