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O'Neill v Liddle

O'Neill v Liddle

Case [2012] NSWCA 267 29 August 2012

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: O'Neill v Liddle [2012] NSWCA 267
Hearing dates: 10 August 2012
Decision date: 29 August 2012
Before: Macfarlan JA at [1]
Barrett JA at [2]
Sackville AJA at [3]
Decision:
1. Appeal allowed in part.
2. Set aside the verdict and judgment for the respondent in the sum of $555,510.
3. In lieu thereof enter verdict and judgment for the respondent in the sum of $517,783.
4. Appeal otherwise dismissed.
5. The appellant pay 80 per cent of the respondent's costs of the appeal.
[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: MOTOR ACCIDENTS - collision at intersection - plaintiff's vision obscured by the sun - defendant found to be liable but plaintiff contributorily negligent - whether findings were erroneous - whether finding that plaintiff's responsibility was 55 per cent was erroneous - whether damages in respect of loss of earning capacity and attendant care services correctly assessed.
Legislation Cited: Civil Liability Act 2005
Motor Accidents Compensation Act 1999
Cases Cited: Joslyn v Berryman [2003] HCA 34; 214 CLR 552
Liftronic Pty Ltd v Unver [2001] HCA 24; 179 ALR 321
Manley v Alexander [2005] HCA 79; 223 ALR 228
Pledge v Roads and Traffic Authority [2004] HCA 13; 205 ALR 56
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALR 529
Sibley v Kais [1967] HCA 43; 118 CLR 424
State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536
Category: Principal judgment
Parties: Margaret Clare O'Neill (Appellant)
Haylee Elizabeth Liddle (Respondent)
Representation: Counsel:
K Rewell SC and J Guihot (Appellant)
P Semmler QC and A Johnson (Respondent)
Solicitors:
Moray & Agnew (Appellant)
Whitley, Ironside & Shillington (Respondent)

File Number(s): 2011/341908
Decision under appeal

Date of Decision:

2011-09-29 00:00:00

Before:

A M Blackmore SC DCJ

File Number(s):

18/2009 (Orange Registry)

Judgment

MACFARLAN JA:I agree with Sackville AJA.

BARRETT JA:I agree with Sackville AJA.

SACKVILLE AJA: This is an appeal from a judgment of the District Court (Blackmore DCJ) awarding the respondent damages in respect of injuries sustained by her in a motor vehicle accident on 23 April 2007. The judgment was delivered on 29 September 2011, after a trial which lasted for seven hearing days scattered over nearly a year, from June 2010 to May 2011. His Honour assessed the total damages at $1,234,468, but reduced that figure by 55 per cent by reason of the respondent's contributory negligence. Thus judgment was entered for the respondent in the sum of $555,510.

The primary Judge's assessment of total damages of $1,234,468 was made up…

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 O'Neill v Liddle

Details

AGLC: O'Neill v Liddle [2012] NSWCA 267
Case: [2012] NSWCA 267
Decision Date: 29 August 2012

CaseChat Overview and Summary

O'Neill v Liddle concerned an appeal from a judgment in a motor accident claim. The plaintiff, Mr Liddle, suffered injuries when his vehicle collided with the defendant's, Mr O'Neill, at an intersection. The trial judge had found Mr O'Neill liable for the collision but also found Mr Liddle contributorily negligent. The appeal raised questions as to whether these findings of liability and contributory negligence were erroneous, specifically challenging the apportionment of responsibility at 55 per cent to the plaintiff. Further issues concerned the assessment of damages for loss of earning capacity and attendant care services.

The Court of Appeal was required to determine whether the trial judge's findings regarding the defendant's liability and the plaintiff's contributory negligence were correct. This included scrutinising the factual basis for the finding that the plaintiff's vision was obscured by the sun and whether this adequately explained the collision. Crucially, the court had to assess whether the 55 per cent apportionment of responsibility to the plaintiff was justified by the evidence. The court also had to review the quantum of damages awarded for loss of earning capacity and attendant care services.

The Court of Appeal allowed the appeal in part. It set aside the original judgment and ordered that judgment be entered for the respondent (Mr Liddle) in a reduced sum. The court found that while the defendant was liable, the plaintiff's contributory negligence had been overstated. The appeal was otherwise dismissed, meaning the finding of liability against the defendant stood, but the quantum of damages was adjusted to reflect the revised apportionment of fault. The appellant was ordered to pay 80 per cent of the respondent's costs of the appeal.

Orders

Orders of the court

1. Appeal allowed in part.

2. Set aside the verdict and judgment for the respondent in the sum of $555,510.

3. In lieu thereof enter verdict and judgment for the respondent in the sum of $517,783.

4. Appeal otherwise dismissed.

5. The appellant pay 80 per cent of the respondent's costs of the appeal.

[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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

O'Neill v Liddle [2012] NSWCA 267

Most Recent Citation

Blakeney v QBE Insurance (Australia) Limited [2022] NSWPIC 148

Cases citing this decision · 5 of 5 shown

Ojala v Youi Pty Limited
[2024] NSWPIC 380 Para 4

…The insurer refers to the decision in Sibley v Kais [1967] HCA 43 and more recently in O’Neill v Liddle [2012] NSWCA 267 where the Court noted that traffic rules were not definitive of the duties of drivers.…
Blakeney v QBE Insurance (Australia) Limited
[2022] NSWPIC 148 Para 12

…In support of its position, the insurer relies upon the case of O’Neill v Liddle [2012] NSWCA 267. The Court of Appeal upheld a trial Judge’s finding of 55% contributory negligence. In that case the injured claimant drove contrary to a traffic control signal, into an intersection and collided with the defendant who…
Kalis v New
[2017] ACTSC 334

…Liddle (1994) 118 FLR 109 Nguyen v The Queen [2012] ACTCA 24 O’Born v Commissioner for Government Transport (1959) 77 WN(NSW) 81 O’Neill v Liddle [2012] NSWCA 267 Osman v Police [2007] SASC 317; 48 MVR 426 Palmer v Clarke (1989) 19 NSWLR 158 Pettit v Dunkley [1971] 1 NSWLR 376 Pollard v RRR Corporation Pty Ltd [200…
Doble Express Transport Pty Ltd (Administrator Appointed) v John L Pierce Pty Ltd
[2015] NSWDC 285 Para 5

…rter v New South Wales Insurance Ministerial Corporation [21] and in the case of Sibley v Kais in O’Neill v Liddle .[22] [21] [1995] NSWCA 376 [22] [2012] NSWCA 267 at [34]…
Danielle Duncan v The Nominal Defendant
[2013] NSWDC 117 Para 1

…Mr Fitzsimmons also took me to other applications of Sibley v Kais, most recently O'Neil v Liddle [2012] NSWCA 267, where in the circumstances then applying, had the appellant kept a proper lookout "she would have been able to avoid a collision by a minor adjustment in speed". He asked me to draw a direct analogy w…

View all 5 citing cases →

Cases cited in this decision · 11 of 11 shown

Manley v Alexander
[2005] HCA 79 Para 1

…The primary Judge did not expressly refer to s 5B of the CL Act. But there is no dispute that the statement of principle in Manley v Alexander [2005] HCA 79; 223 ALR 228, to which the primary Judge referred, is relevant to the application of s 5B(1)(c) to the present case. That was a case where the defendant was…
Pledge v Roads and Traffic Authority
[2004] HCA 13 Para 1

…weight by an appellate court since it provides a " valuable third dimension " that photographs necessarily lack: Pledge v Roads and Traffic Authority [2004] HCA 13; 205 ALR 56, at 70 [49], per Callinan and Heydon JJ (with whom McHugh ACJ, Kirby and Hayne JJ agreed).…
Joslyn v Berryman
[2003] HCA 34

…nt care services correctly assessed. Legislation Cited: Civil Liability Act 2005 Motor Accidents Compensation Act 1999 Cases Cited: Joslyn v Berryman [2003] HCA 34; 214 CLR 552 Liftronic Pty Ltd v Unver [2001] HCA 24; 179 ALR 321 Manley v Alexander [2005] HCA 79; 223 ALR 228 Pledge v Roads and Traffic Authority…
Liftronic Pty Ltd v Unver
[2001] HCA 24

…d: Civil Liability Act 2005 Motor Accidents Compensation Act 1999 Cases Cited: Joslyn v Berryman [2003] HCA 34; 214 CLR 552 Liftronic Pty Ltd v Unver [2001] HCA 24; 179 ALR 321 Manley v Alexander [2005] HCA 79; 223 ALR 228 Pledge v Roads and Traffic Authority [2004] HCA 13; 205 ALR 56 Podrebersek v Australian Ir…
State of New South Wales v Moss
[2000] NSWCA 133 Para 1

…er potential to earn income and had shown determination and resourcefulness in her post-injury employment activities: State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536, at 538 [4], per Mason P (with whom Handley JA agreed).…
Podbrebersek v Australian Iron & Steel Pty Ltd
[1985] HCA 34 Para 1

…nsibility for an accident is not lightly to be disturbed. The principle was stated by the High Court in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALR 529, at 532-533 [8], [10]:…
Sibley v Kais
[1967] HCA 43 Para 1

…Mr Rewell SC, who appeared with Mr Guihot for the appellant, also did not dispute that observations made by the High Court in Sibley v Kais [1967] HCA 43; 118 CLR 424, were directly relevant to the present case. The Court there said (at 427) that:…
Pennington v Norris
[1956] HCA 26

…age involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man ( Pennington v. Norris [1956] HCA 26; (1956) 96 CLR 10, at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd (1953) AC 663 a…
Stapley v Gypsum Mines Ltd
[1953] UKHL 4

…e man ( Pennington v. Norris [1956] HCA 26; (1956) 96 CLR 10, at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd (1953) AC 663 at 682; Smith v. McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208, at 219 and cases there cited. It is the whole cond…
[1943] AC 197
[1943] AC 197

…ndividual choice or discretion, as to which there may well be differences of opinion by different minds': British Fame (Owners) v. Macgregor (Owners) [1943] AC 197, at 201. Such a finding, if made by a judge, is not lightly reviewed.…
Stapley v Gypsum Mines Ltd
(1953) AC 663

…s [1956] HCA 26; (1956) 96 CLR 10, at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd (1953) AC 663 at 682; Smith v. McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208, at 219 and cases there cited. It is the whole conduct of…

Legislation cited in this decision · 2

Civil Liability Act 2005 (NSW)
1 mention (from Para 1)
Motor Accidents Compensation Act 1999 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	O'Neill v Liddle [2012] NSWCA 267
Hearing dates:	10 August 2012
Decision date:	29 August 2012
Before:	Macfarlan JA at [1] Barrett JA at [2] Sackville AJA at [3]
Decision:	1. Appeal allowed in part. 2. Set aside the verdict and judgment for the respondent in the sum of $555,510. 3. In lieu thereof enter verdict and judgment for the respondent in the sum of $517,783. 4. Appeal otherwise dismissed. 5. The appellant pay 80 per cent of the respondent's costs of the appeal. [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:	MOTOR ACCIDENTS - collision at intersection - plaintiff's vision obscured by the sun - defendant found to be liable but plaintiff contributorily negligent - whether findings were erroneous - whether finding that plaintiff's responsibility was 55 per cent was erroneous - whether damages in respect of loss of earning capacity and attendant care services correctly assessed.
Legislation Cited:	Civil Liability Act 2005 Motor Accidents Compensation Act 1999
Cases Cited:	Joslyn v Berryman [2003] HCA 34; 214 CLR 552 Liftronic Pty Ltd v Unver [2001] HCA 24; 179 ALR 321 Manley v Alexander [2005] HCA 79; 223 ALR 228 Pledge v Roads and Traffic Authority [2004] HCA 13; 205 ALR 56 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALR 529 Sibley v Kais [1967] HCA 43; 118 CLR 424 State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536
Category:	Principal judgment
Parties:	Margaret Clare O'Neill (Appellant) Haylee Elizabeth Liddle (Respondent)
Representation:	Counsel: K Rewell SC and J Guihot (Appellant) P Semmler QC and A Johnson (Respondent) Solicitors: Moray & Agnew (Appellant) Whitley, Ironside & Shillington (Respondent)
File Number(s):	2011/341908
Decision under appeal	Date of Decision: 2011-09-29 00:00:00 Before: A M Blackmore SC DCJ File Number(s): 18/2009 (Orange Registry)