Rowes Bus Service Pty Ltd v Cowan - [1999] NSWCA 268

Reported Decision: (1999) Aust Torts Reports 81-517

New South Wales

Court of Appeal

CITATION: Rowes Bus Service Pty Ltd v Cowan; Sufong v Cowan [1999] NSWCA 268

FILE NUMBER(S): CA 40924/98; 40946/98

HEARING DATE(S): 9 July 1999

JUDGMENT DATE:
27 July 1999

PARTIES :

Rowes Bus Service Pty Ltd v Nicola Jane Cowan
Robert Sufong v Nicola Jane Cowan

JUDGMENT OF: Stein JA at 1; Cole AJA at 56; Foster AJA at 93

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : DC 6474/97

LOWER COURT JUDICIAL OFFICER: Hughes ADCJ

COUNSEL: J Hislop QC/D Cutler (Rowes Bus Service - Appellant)
R Bartlett SC (Robert Sufong - Appellant)
L King SC/M Elkaim (Nicola Jane Cowan - Respondent)

SOLICITORS: Vandervords (Rowes Bus Service Pty Ltd - Appellant)
Sparke Helmore (Robert Sufong - Appellant)
McCourts (Nicola Jane Cowan - Respondent)

CATCHWORDS: District Court - MVA - student alighting from bus struck by motor vehicle - allowing bus passengers to alight in a potentially dangerous area - liability - duty of care of bus company and motor vehicle driver - whether breach of duty of care - reasonable foreseeability - apportionment of liability - contributory negligence - cross-appeal on quantum of damages

ACTS CITED: s 5(2) Law Reform (Miscellaneous Provisions) Act 1946
s 72 Motor Accidents Act 1988

CASES CITED:
Urban Transit Authority v Ruz-Canales (1995) 22 MVR 249
Jarvis v Scrase (unreported, Queensland Court of Appeal, 22 December 1998)
Wyong Shire Council v Shirt (1979-1980) 146 CLR 40
Pyrenees Shire Council v Day (1998) 192 CLR 330
Stocks v Baldwin (1996) 24 MVR 416
Yu v Yu (1998) 26 MVR 509
Mitchell v GIO (1992) 15 MVR 369
Macquarie Pathology Services Pty Ltd v Sullivan (unreported, Court of Appeal, 28 March 1995)
Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65
Pennington v Norris (1956) 96 CLR 1
Podreberserk v Al&S (1985) 59 ALJR 492
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448

DECISION: Each appeal upheld in part; Judgment for the plaintiff in the sum of $989,600 set aside and a judgment against the appellants in the sum of $760,145 substituted; The order of the District Court that the appellants pay the costs of the trial be confirmed; The appellants pay the costs of the appeal; The amount of contribution as between the appellants, in respect of their liability to the plaintiff under the judgment and for costs, shall be, as to the appellant, Rowes Bus Service Pty Ltd, 50 per cent, and as to the appellant, Robert Sufong, 50 per cent thereof; Cross-appeal dismissed with no order as to costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40924/98; 40946/98

DC 6474/97

STEIN JA

COLE AJA
FOSTER AJA

Tuesday, 27 July 1999

ROWES BUS SERVICE PTY LTD v Nichola Jane COWAN

Robert SUFONG v Nichola Jane COWAN
At approximately 3.30 pm on 24 June 1991 the plaintiff/respondent was travelling home from school on a Rowes’ bus along Richmond…

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.

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Details

Case: [1999] NSWCA 268
Decision Date: 27 July 1999

CaseChat Overview and Summary

Rowes Bus Service Pty Ltd and Robert Sufong (the appellants) appealed to the Court of Appeal of New South Wales against a judgment of the District Court. The District Court had found them liable for injuries sustained by the plaintiff, Ms. Cowan, who was struck by a motor vehicle after alighting from a bus operated by Rowes Bus Service. The plaintiff had alleged negligence on the part of both the bus company for allowing passengers to alight in a potentially dangerous area and the motor vehicle driver for his manner of driving.

The central legal issues before the Court of Appeal were whether the appellants had breached their respective duties of care to the plaintiff, whether such breaches caused or contributed to her injuries, and if so, how liability should be apportioned between them. The court also considered the plaintiff's contributory negligence and the quantum of damages awarded by the District Court.

The Court of Appeal reasoned that both the bus company and the motor vehicle driver owed a duty of care to the plaintiff. It found that the bus company was negligent in allowing passengers to alight in a location that presented a foreseeable risk of harm from passing traffic, and that the driver of the motor vehicle was also negligent in his driving. The court applied principles of reasonable foreseeability and causation to determine the extent of each party's liability. While upholding the finding of liability, the court adjusted the quantum of damages awarded, setting aside the original judgment and substituting a reduced amount. The court also confirmed the order for the appellants to pay the plaintiff's trial costs and ordered them to pay the costs of the appeal. The liability between the appellants was apportioned equally at 50 per cent each. The plaintiff's cross-appeal regarding the quantum of damages was dismissed.

Orders

Orders of the court

Each appeal upheld in part; Judgment for the plaintiff in the sum of $989,600 set aside and a judgment against the appellants in the sum of $760,145 substituted; The order of the District Court that the appellants pay the costs of the trial be confirmed; The appellants pay the costs of the appeal; The amount of contribution as between the appellants, in respect of their liability to the plaintiff under the judgment and for costs, shall be, as to the appellant, Rowes Bus Service Pty Ltd, 50 per cent, and as to the appellant, Robert Sufong, 50 per cent thereof; Cross-appeal dismissed with no order as to costs.

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.

CITATION:	Rowes Bus Service Pty Ltd v Cowan; Sufong v Cowan [1999] NSWCA 268
FILE NUMBER(S):	CA 40924/98; 40946/98
HEARING DATE(S):	9 July 1999
JUDGMENT DATE:	27 July 1999
PARTIES :	Rowes Bus Service Pty Ltd v Nicola Jane Cowan Robert Sufong v Nicola Jane Cowan
JUDGMENT OF:	Stein JA at 1; Cole AJA at 56; Foster AJA at 93

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 6474/97
LOWER COURT JUDICIAL OFFICER:	Hughes ADCJ

COUNSEL:	J Hislop QC/D Cutler (Rowes Bus Service - Appellant) R Bartlett SC (Robert Sufong - Appellant) L King SC/M Elkaim (Nicola Jane Cowan - Respondent)
SOLICITORS:	Vandervords (Rowes Bus Service Pty Ltd - Appellant) Sparke Helmore (Robert Sufong - Appellant) McCourts (Nicola Jane Cowan - Respondent)
CATCHWORDS:	District Court - MVA - student alighting from bus struck by motor vehicle - allowing bus passengers to alight in a potentially dangerous area - liability - duty of care of bus company and motor vehicle driver - whether breach of duty of care - reasonable foreseeability - apportionment of liability - contributory negligence - cross-appeal on quantum of damages
ACTS CITED:	s 5(2) Law Reform (Miscellaneous Provisions) Act 1946 s 72 Motor Accidents Act 1988
CASES CITED:	Urban Transit Authority v Ruz-Canales (1995) 22 MVR 249 Jarvis v Scrase (unreported, Queensland Court of Appeal, 22 December 1998) Wyong Shire Council v Shirt (1979-1980) 146 CLR 40 Pyrenees Shire Council v Day (1998) 192 CLR 330 Stocks v Baldwin (1996) 24 MVR 416 Yu v Yu (1998) 26 MVR 509 Mitchell v GIO (1992) 15 MVR 369 Macquarie Pathology Services Pty Ltd v Sullivan (unreported, Court of Appeal, 28 March 1995) Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65 Pennington v Norris (1956) 96 CLR 1 Podreberserk v Al&S (1985) 59 ALJR 492 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448
DECISION:	Each appeal upheld in part; Judgment for the plaintiff in the sum of $989,600 set aside and a judgment against the appellants in the sum of $760,145 substituted; The order of the District Court that the appellants pay the costs of the trial be confirmed; The appellants pay the costs of the appeal; The amount of contribution as between the appellants, in respect of their liability to the plaintiff under the judgment and for costs, shall be, as to the appellant, Rowes Bus Service Pty Ltd, 50 per cent, and as to the appellant, Robert Sufong, 50 per cent thereof; Cross-appeal dismissed with no order as to costs.