Sangha v Baxter

Case [2007] NSWCA 264

New South Wales


Court of Appeal


CITATION: Sangha v Baxter [2007] NSWCA 264
HEARING DATE(S): 31/07/07
 
JUDGMENT DATE: 
28 September 2007
JUDGMENT OF: Ipp JA at 1; Campbell JA at 27; Young CJ in Eq at 28
DECISION: (1) The appeal is upheld; (2) The judgment and orders made by the trial judge are set aside; (3) The matter is remitted to the District Court for retrial; (4) The respondent to pay the appellant's costs of the appeal; (5) The respondent to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled; (6) The costs of the trial to be determined by the trial judge at the remitted trial.
CATCHWORDS: APPEAL AND NEW TRIAL- When appeal lies- Error of law- Failure to give adequate reasons for decision- Appeal in negligence action- Appellant raised defences of self-defence, criminal enterprise and contributory negligence at trial- Primary judge largely rejects defences- Judge gives reasons seemingly without aid of transcript- Omits reference to significant parts of evidence- Held judge failed in reasons to properly engage with appellant's case- New trial ordered. TORTS- Negligence - Contributory negligence- How assessed- Primary judge erred in principle- Apportionment of liability revised. TORTS- Negligence- Miscellaneous defences- Illegality of plaintiff's activity- Discussion of Civil Liability Act, s 54- Damages not awarded if plaintiff injured following his committing a serious offence- Injury follows offence if clearly associated with it in time, place and circumstances.
LEGISLATION CITED: Civil Liability Act 2002, ss 5R, 52, 53, 54
CASES CITED: Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430
Consolidated Broken Hill v Edwards (2005) Aust Torts Rep 81-815
Gala v Preston (1991) 172 CLR 243
Godbolt v Fittock (1963) 63 SR (NSW) 617
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Re Lean (1993) 66 A Crim R 296
Smith v Jenkins (1970) 119 CLR 397
Teper v The Queen [1952] AC 480
Vairy v Wyong Shire Council (2005) 223 CLR 422
Whalan v Kogarah Municipal Council [2007] NSWCA 5
Zecevic v DPP (1987) 162 CLR 645
PARTIES: Balraj Sangha (Appellant)
Peter Marshall Baxter BHNF Laurna Baxter (Respondent)
FILE NUMBER(S): CA 40097/07
COUNSEL: M Williams SC and R O'Keefe (Appellant)
D Wheelahan QC and K Andrews (Respondent)
SOLICITORS: Vardanega Roberts (Appellant)
Keddies (Respondent)
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 2751/06
LOWER COURT JUDICIAL OFFICER: Garling DCJ
LOWER COURT DATE OF DECISION: 8/2/07



                          40097/07

                          IPP JA
                          CAMPBELL JA
                          YOUNG CJ in EQ

                          Friday 28 September 2007
SANGHA v BAXTER
Judgment

1 IPP JA: I have had the benefit of reading the draft reasons of Young CJ in Eq. I shall not refer to the facts set out in his Honour’s judgment save to the extent necessary to explain the conclusions to which I have come.

2 The respondent was seriously injured when the taxi, owned by the appellant and driven by Mr Nagra, reversed over him.

3 The appellant raised three defences to the respondent’s claim. The first was based on…

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AGLC
Sangha v Baxter [2007] NSWCA 264
Case
[2007] NSWCA 264
Decision Date

CaseChat Overview and Summary

Sangha (Appellant) appealed to the Court of Appeal of New South Wales against a decision of the primary judge in a negligence action brought by Baxter (Respondent). The Appellant had raised defences of self-defence, criminal enterprise, and contributory negligence at trial, which the primary judge largely rejected.

The Court of Appeal was required to determine whether the primary judge erred in law by failing to give adequate reasons for their decision, particularly in relation to the Appellant's defences. The Court also considered whether the primary judge had erred in principle in assessing contributory negligence and whether the defence of illegality under section 54 of the *Civil Liability Act 2002* (NSW) was applicable.

The Court found that the primary judge had failed to properly engage with the Appellant's case in their reasons, which appeared to have been given without the aid of a transcript and omitted reference to significant parts of the evidence. This failure constituted an error of law. The Court also determined that the primary judge had erred in principle in the apportionment of liability for contributory negligence. While the defence of illegality was discussed, the Court did not make a final determination on its application in this instance, focusing instead on the inadequacy of the primary judge's reasons.

Consequently, the Court of Appeal upheld the appeal, set aside the judgment and orders of the trial judge, and remitted the matter to the District Court for a retrial. The Respondent was ordered to pay the Appellant's costs of the appeal, with the costs of the trial to be determined at the remitted trial.

Orders

Orders of the court

(1) The appeal is upheld; (2) The judgment and orders made by the trial judge are set aside; (3) The matter is remitted to the District Court for retrial; (4) The respondent to pay the appellant's costs of the appeal; (5) The respondent to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled; (6) The costs of the trial to be determined by the trial judge at the remitted trial.

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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