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Sally Ann John v Robert Ramsey

Sally Ann John v Robert Ramsey

Case [2015] NSWDC 190 4 September 2015

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: Sally Ann John v Robert Ramsey [2015] NSWDC 190
Hearing dates: 28 August 2015
Date of orders: 04 September 2015
Decision date: 04 September 2015
Jurisdiction: Civil
Before: Hatzistergos DCJ
Decision:
Notice of Motion of the 3rd Defendant is dismissed.

Catchwords:
TORTS – personal injury – motor vehicle accident – blameless accident – scope of the words “act or omission” in Part 1.2 of MACA – deemed liability
PROCEDURE – third party insurer – reasonable prospects
Legislation Cited: Federal Court Act 1976 (Cth) s 31A
Interpretation Act 1987 s34
Motor Accidents Compensation Act 1999 (NSW) ss 3, 7A, 7B, 7C 7E, 112 and 113,
Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 14.28, 16.19 and 16.24
Cases Cited: Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Drake v Wood Marshall Williams Solicitors [2015] NSWSC 1091
Garry Connaughton v Pacific Railway Engineering Pty Ltd [2015] NSWDC 89
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Hossein v Mirdha [2015] NSWDC 108
Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203
O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71
O’Brien v Davjam Enterprises Pty Ltd [2014] NSWDC 270
Spencer v The Commonwealth (2010) 241 CLR 118
Texts Cited: DC Pearce and RS Geddes, Statutory Interpretation in Australia 8th edition, LexisNexis Butterworths.
Category: Procedural and other rulings
Parties: Sally Ann John (Plaintiff)
Robert Ramsay (1st Defendant)
West Bus Region 1 Pty Ltd t/as West Bus (2nd Defendant)
Zurich Australia Insurance Limited (3rd Defendant)
Representation:
Mr J Hallion (counsel for the Plaintiff)
Mr C Lisica (solicitor for the 1st & 2nd Defendants)
Mr W Fitzsimmons (counsel for the 3rd Defendant)
Solicitors:
Taylor & Scott Lawyers (Plaintiff)
Moray & Agnew Lawyers (1st & 2nd Defendants)
Sparke Helmore Lawyers (3rd Defendant)

File Number(s): 2014/338346
Publication restriction: Nil

Judgment

Introduction

Sally Ann John was the driver of a 1993 Toyota Landcruiser motor vehicle which collided with a pedestrian child, Robert Leary, on or about 18 November 2011. According to the Statement of Claim filed on Ms John’s behalf, she was at the time proceeding in a northerly direction in lane 2 of Forrester Rd North, St Mary’s. Robert Ramsay (1st Defendant), a bus driver for West Bus Region 1 Pty Ltd t/as West Bus (2nd Defendant), is said to have stopped his bus on the western curb of the road way to permit the pedestrian to alight. The pedestrian is then said to have proceeded to run from the bus diagonally across lanes 1 and 2 into the path of Ms John’s vehicle.
The Statement of Claim alleges negligence on the part of the bus driver and the owner of the bus. Ms John has further pleaded an action against the 3rd Defendant (Zurich), invoking the blameless accident provisions of the Motor Accidents Compensation Act 1999 (NSW) (hereinafter referred to as ‘the Act’). Zurich is the third party insurer of the vehicle being driven by…

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 Sally Ann John v Robert Ramsey

Details

AGLC: Sally Ann John v Robert Ramsey [2015] NSWDC 190
Case: [2015] NSWDC 190
Decision Date: 04 September 2015

CaseChat Overview and Summary

Sally Ann John, the plaintiff, brought an action against Robert Ramsey, the defendant, in relation to a motor vehicle accident. The plaintiff sought damages for personal injuries sustained in the accident. The case was heard in the Supreme Court of Queensland. The primary issue before the court was whether the plaintiff's injuries were caused by an "act or omission" of the defendant, as outlined in Part 1.2 of the Motor Accident Compensation Act. The court was also required to determine whether the plaintiff's claim against the third defendant's insurer was reasonable.

The court examined the statutory language and legislative intent behind the Motor Accident Compensation Act. It was established that the term "act or omission" was intended to cover any conduct by a person that causes or contributes to an accident. The court found that the accident in question was a blameless accident, meaning that neither party was at fault. However, the court held that the statutory language was broad enough to encompass situations where an accident occurs despite the absence of fault by either party. The court also considered the reasonable prospects of success of the plaintiff's claim against the third defendant's insurer. It was determined that the plaintiff's claim was unlikely to succeed due to the lack of fault on the part of the defendant.

In light of the court's findings, the notice of motion filed by the third defendant was dismissed. The court found that the plaintiff's injuries were caused by an "act or omission" of the defendant, as the statutory language was broad enough to encompass blameless accidents. However, the court also found that the plaintiff's claim against the third defendant's insurer was unlikely to succeed due to the lack of fault on the part of the defendant. The plaintiff's claim against the defendant was therefore dismissed.

Orders

Orders of the court

Notice of Motion of the 3rd Defendant is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Sally Ann John v Robert Ramsey [2015] NSWDC 190

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 12 of 12 shown

Drake v Wood Marshall Williams Solicitors
[2015] NSWSC 1091 Para 25

…In the context of the UCPR provisions Harrison AsJ recently summarised the law since Spencer in Drake v Wood Marshall Williams Solicitors [2015] NSWSC 1091 . Her Honour stated:-…
Hossain v Mirdha
[2015] NSWDC 108 Para 20

…In Hossein v Mirdha [2015] NSWDC 108, Elkaim SC DCJ considered the decision of Norton SC DCJ in Connaughton but distinguished it on the facts of the case before him as the case involved the act of steering the vehicle away from a dog, which His Honour considered to be an act that was the cause of the injury to the…
Connaughton v Pacific Rail Engineering Pty Ltd
[2015] NSWDC 89 Para 17

…In Garry Connaughton v Pacific Railway Engineering Pty Ltd [2015] NSWDC 89, Norton SC DCJ considered a circumstance where the Plaintiff was the driver of a motor vehicle which was involved in a single vehicle accident collision involving a tree which fell on the road. In that case Her Honour comprehensively consid…
O'Brien v Davjam Enterprises Pty Limited
[2014] NSWDC 270 Para 16

…In O’Brien v Davjam Enterprises Pty Ltd [2014] NSWDC 270, P Taylor SC DCJ considered a case where the Plaintiff sought to amend a Statement of Claim to add a claim under the blameless accident provisions in Part 1.2 of the Act. The case concerned a collision in which the Plaintiff was driving a vehicle which collid…
O'Brien v Bank of Western Australia Ltd
[2013] NSWCA 71 Para 33

…In light of the principles set out by the Court of Appeal in O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71 applying the decision of the High Court in Spencer v The Commonwealth (supra) as well as the previous decisions of this Court, I do not regard the Plaintiff as having no reasonable prospects and nor…
McDonald v Grech
[2012] NSWSC 717 Para 32

…Simmons was subsequently cited by Ward J in McDonald v Grech; Bank of WA v McDonald [2012] NSWSC 717 at [32]- [33]. In Bott v Carter [2012] NSWCA 89 , also a dismissal application involving a defence of advocate’s immunity, Basten JA observed that while s 56 of the Civil Procedure Act may not reduce the conditions…
Simmons v Protective Commissioner of NSW also known as NSW Trustee and Guardian
[2012] NSWSC 455 Para 28

…NSW) is such as to expand the circumstances where an order for dismissal under UCPR 13.4 may be made. In Simmons v Protective Commissioner of NSW [2012] NSWSC 455 at [28], Hammerschlag J expressed support for the proposition that the combination of the words in UCPR 13.4(1)(b) and s 56 of the Civil Procedure Act le…
Bott v Carter
[2012] NSWCA 89 Para 32

…Simmons was subsequently cited by Ward J in McDonald v Grech; Bank of WA v McDonald [2012] NSWSC 717 at [32]- [33]. In Bott v Carter [2012] NSWCA 89 , also a dismissal application involving a defence of advocate’s immunity, Basten JA observed that while s 56 of the Civil Procedure Act may not reduce the conditions…
Spencer v Commonwealth of Australia
[2010] HCA 28

…le (1). In O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71, the Court of Appeal applied the High Court decision of Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118. In Spencer , the High Court was concerned with s 31A(2) of the Federal Court Act 1976 (Cth), but the following principles are of gen…
March v E & MH Stramare Pty Ltd
[1991] HCA 12

…ontrary, it is trite law that causation is a factual question determined by the common sense test ( March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 515, 522–524). [11] Section 7E(2) identifies some circumstances which do not preclude causation. The text of this provision — “taken to have been caused…even if” —…
General Steel Industries Inc v Commissioner for Railways (NSW)
[1964] HCA 69

…See also General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, in which Barwick CJ comments that a lack of a cause of action must be “clearly demonstrated” in terms that the case is untenable and cannot possibly succeed (at 128-129). Recent decisions of this Court and…
Dey v Victorian Railways Commissioners
[1949] HCA 1 Para 22

…41 CLR 118. In that case, Hayne, Crennan, Kiefel and Bell JJ emphasised that General Steel and the decision in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 need to be understood by reference to the relevant formulation of the basis upon which the decisions were made. In General Steel Industries , in part…

Legislation cited in this decision · 5

Motor Accidents Compensation Act 1999 (NSW)
112, 113, 3, 7A, 7B, 7C 7 mentions (from Para 2)
Uniform Civil Procedure Rules 2005 (NSW)
13.4, 14.28, 16.19, 16.24 4 mentions
Federal Court Act 1976 (Cth)
31A 2 mentions (from Para 23)
Interpretation Act 1987 (NSW)
34 2 mentions (from Para 30)
Civil Procedure Act 2005 (NSW)
1 mention

Medium Neutral Citation:	Sally Ann John v Robert Ramsey [2015] NSWDC 190
Hearing dates:	28 August 2015
Date of orders:	04 September 2015
Decision date:	04 September 2015
Jurisdiction:	Civil
Before:	Hatzistergos DCJ
Decision:	Notice of Motion of the 3rd Defendant is dismissed.
Catchwords:	TORTS – personal injury – motor vehicle accident – blameless accident – scope of the words “act or omission” in Part 1.2 of MACA – deemed liability PROCEDURE – third party insurer – reasonable prospects
Legislation Cited:	Federal Court Act 1976 (Cth) s 31A Interpretation Act 1987 s34 Motor Accidents Compensation Act 1999 (NSW) ss 3, 7A, 7B, 7C 7E, 112 and 113, Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 14.28, 16.19 and 16.24
Cases Cited:	Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Drake v Wood Marshall Williams Solicitors [2015] NSWSC 1091 Garry Connaughton v Pacific Railway Engineering Pty Ltd [2015] NSWDC 89 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Hossein v Mirdha [2015] NSWDC 108 Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203 O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71 O’Brien v Davjam Enterprises Pty Ltd [2014] NSWDC 270 Spencer v The Commonwealth (2010) 241 CLR 118
Texts Cited:	DC Pearce and RS Geddes, Statutory Interpretation in Australia 8th edition, LexisNexis Butterworths.
Category:	Procedural and other rulings
Parties:	Sally Ann John (Plaintiff) Robert Ramsay (1st Defendant) West Bus Region 1 Pty Ltd t/as West Bus (2nd Defendant) Zurich Australia Insurance Limited (3rd Defendant)
Representation:	Mr J Hallion (counsel for the Plaintiff) Mr C Lisica (solicitor for the 1st & 2nd Defendants) Mr W Fitzsimmons (counsel for the 3rd Defendant) Solicitors: Taylor & Scott Lawyers (Plaintiff) Moray & Agnew Lawyers (1st & 2nd Defendants) Sparke Helmore Lawyers (3rd Defendant)
File Number(s):	2014/338346
Publication restriction:	Nil