Scott v Williamson; Picken v Williamson - [2013] NSWCA 124

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Scott v Williamson; Picken v Williamson [2013] NSWCA 124
Hearing dates: 14 February 2013
Decision date: 16 May 2013
Before: Beazley P at [1];
McColl JA at [98];
Barrett JA at [99]
Decision:
In the appeal of James Picken v Michael John Williamson and Stephen Pastega CA 2012/47273:
(1)(a) Appeal allowed as against the first respondent/first defendant Michael John Williamson;
(b) Appeal dismissed as against the second respondent Stephen Pastega;
(2) Set aside verdict in favour of the first respondent/first defendant Michael John Williamson;
(3) Set aside the order for costs in the Court below in favour of the first respondent/ first defendant Michael John Williamson;
(4) Judgment for the appellant/plaintiff James Picken against the first respondent/first defendant Michael John Williamson;
(5) Remit the claim of the appellant James Picken to the District Court for the determination of damages;
(6) Order that the award of damages assessed by the District Court on the remitted hearing on the claim against the first respondent/first defendant Michael John Williamson be reduced by 65 per cent for the contributory negligence of the appellant/plaintiff, James Picken;
(7) Order that the first respondent/first defendant Michael John Williamson pay the appellant/ plaintiff James Picken the costs of the proceedings in the court below heard and determined by Puckeridge ADCJ;
(8) Order that the first respondent Michael James Williamson pay to the appellant James Picken his costs of the appeal as follows:
(a) All costs of the preparation of the appeal as related to the appeal against the first respondent;
(b) 50 per cent of the costs of the hearing of the appeal;
(9) Order that the appellant James Picken pay to the second respondent Stephen Pastega 80 per cent of his costs of the appeal, such liability for costs to be a joint and concurrent liability with the appellant Rebecca Scott in proceedings CA 2012/47286;
(10) Order that the first respondent/first defendant Michael John Williamson pay to the second respondent Stephen Pastega 20 per cent of his costs of the appeal.
In the appeal of Rebecca Scott v Michael John Williamson and Stephen Pastega CA 2012/47286:
(1)(a) Appeal allowed as against the first respondent/first defendant Michael John Williamson;
(b) Appeal dismissed as against the second respondent Stephen Pastega;
(2) Set aside verdict in favour of the first respondent/first defendant Michael John Williamson;
(3) Set aside the order for costs in the Court below in favour of the first respondent/first defendant Michael John Williamson;
(4) Judgment for the appellant/plaintiff Rebecca Scott against the first respondent/first defendant Michael John Williamson;
(5) Remit the claim of the appellant Rebecca Scott to the District Court for the determination of damages;
(6) Order that the award of damages assessed by the District Court on the remitted hearing on the claim against the first respondent/first defendant Michael John Williamson be reduced by 30 per cent for the contributory negligence of the appellant/plaintiff, Rebecca Scott;
(7) Order that the first respondent/first…

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 Scott v Williamson; Picken v Williamson

Details

AGLC: Scott v Williamson; Picken v Williamson [2013] NSWCA 124
Case: [2013] NSWCA 124
Decision Date: 16 May 2013

CaseChat Overview and Summary

This case concerned appeals by Rebecca Scott and James Picken against Michael John Williamson and Stephen Pastega following a road accident. The primary dispute involved allegations of negligence against Mr Williamson, the driver of a vehicle, and potentially Mr Pastega, whose vehicle was parked in an emergency lane. The appeals were heard in the Court of Appeal of New South Wales.

The Court of Appeal was required to determine whether Mr Williamson was negligent in his driving, specifically concerning his failure to keep a proper lookout. It also had to consider whether Mr Pastega, by parking his vehicle in the emergency lane, had created a dangerous situation, and whether either party owed a duty to warn of any obvious risk. Furthermore, the court needed to assess the extent of any contributory negligence on the part of the appellants, Ms Scott and Mr Picken, for their own safety when crossing the roadway.

The Court of Appeal found that Mr Williamson was negligent and that his negligence caused the accident. However, it also found that both Ms Scott and Mr Picken were contributorily negligent. The court applied the principles of negligence and contributory negligence, noting that there was no duty to warn of an obvious risk under the *Civil Liability Act 2002*. The court set aside the verdict in favour of Mr Williamson and ordered that judgment be entered for the appellants against him.

The appeals were allowed in part, with the court dismissing the appeals against Mr Pastega. The matter was remitted to the District Court for the determination of damages for both Ms Scott and Mr Picken. The court ordered that the damages awarded to Ms Scott be reduced by 30 per cent and to Mr Picken by 65 per cent due to their respective contributory negligence. Costs orders were made in favour of the appellants against Mr Williamson, and specific cost allocations were made between the parties concerning the appeal and the court below.

Orders

Orders of the court

In the appeal of James Picken v Michael John Williamson and Stephen Pastega CA 2012/47273:

(1)(a) Appeal allowed as against the first respondent/first defendant Michael John Williamson;

(b) Appeal dismissed as against the second respondent Stephen Pastega;

(2) Set aside verdict in favour of the first respondent/first defendant Michael John Williamson;

(3) Set aside the order for costs in the Court below in favour of the first respondent/ first defendant Michael John Williamson;

(4) Judgment for the appellant/plaintiff James Picken against the first respondent/first defendant Michael John Williamson;

(5) Remit the claim of the appellant James Picken to the District Court for the determination of damages;

(6) Order that the award of damages assessed by the District Court on the remitted hearing on the claim against the first respondent/first defendant Michael John Williamson be reduced by 65 per cent for the contributory negligence of the appellant/plaintiff, James Picken;

(7) Order that the first respondent/first defendant Michael John Williamson pay the appellant/ plaintiff James Picken the costs of the proceedings in the court below heard and determined by Puckeridge ADCJ;

(8) Order that the first respondent Michael James Williamson pay to the appellant James Picken his costs of the appeal as follows:

(a) All costs of the preparation of the appeal as related to the appeal against the first respondent;

(b) 50 per cent of the costs of the hearing of the appeal;

(9) Order that the appellant James Picken pay to the second respondent Stephen Pastega 80 per cent of his costs of the appeal, such liability for costs to be a joint and concurrent liability with the appellant Rebecca Scott in proceedings CA 2012/47286;

(10) Order that the first respondent/first defendant Michael John Williamson pay to the second respondent Stephen Pastega 20 per cent of his costs of the appeal.

In the appeal of Rebecca Scott v Michael John Williamson and Stephen Pastega CA 2012/47286:

(1)(a) Appeal allowed as against the first respondent/first defendant Michael John Williamson;

(b) Appeal dismissed as against the second respondent Stephen Pastega;

(2) Set aside verdict in favour of the first respondent/first defendant Michael John Williamson;

(3) Set aside the order for costs in the Court below in favour of the first respondent/first defendant Michael John Williamson;

(4) Judgment for the appellant/plaintiff Rebecca Scott against the first respondent/first defendant Michael John Williamson;

(5) Remit the claim of the appellant Rebecca Scott to the District Court for the determination of damages;

(6) Order that the award of damages assessed by the District Court on the remitted hearing on the claim against the first respondent/first defendant Michael John Williamson be reduced by 30 per cent for the contributory negligence of the appellant/plaintiff, Rebecca Scott;

(7) Order that the first respondent/first defendant Michael John Williamson pay the appellant/plaintiff Rebecca Scott the costs of the proceedings in the court below heard and determined by Puckeridge ADCJ;

(8) Order that the first respondent Michael James Williamson pay to the appellant Rebecca Scott his costs of the appeal as follows:

(a) All costs of the preparation of the appeal as related to the appeal against the first respondent;

(b) 50 per cent of the costs of the day of the hearing of the appeal;

(9) Order that the appellant Rebecca Scott pay to the second respondent Stephen Pastega 80 per cent of his costs of the appeal, such liability for costs to be a joint and concurrent liability with the appellant James Picken in proceedings CA 2012/47273.

(10) Order that the first respondent/first defendant Michael John Williamson pay to the second respondent Stephen Pastega 20 per cent of his 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

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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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Medium Neutral Citation:	Scott v Williamson; Picken v Williamson [2013] NSWCA 124
Hearing dates:	14 February 2013
Decision date:	16 May 2013
Before:	Beazley P at [1]; McColl JA at [98]; Barrett JA at [99]
Decision:	In the appeal of James Picken v Michael John Williamson and Stephen Pastega CA 2012/47273: (1)(a) Appeal allowed as against the first respondent/first defendant Michael John Williamson; (b) Appeal dismissed as against the second respondent Stephen Pastega; (2) Set aside verdict in favour of the first respondent/first defendant Michael John Williamson; (3) Set aside the order for costs in the Court below in favour of the first respondent/ first defendant Michael John Williamson; (4) Judgment for the appellant/plaintiff James Picken against the first respondent/first defendant Michael John Williamson; (5) Remit the claim of the appellant James Picken to the District Court for the determination of damages; (6) Order that the award of damages assessed by the District Court on the remitted hearing on the claim against the first respondent/first defendant Michael John Williamson be reduced by 65 per cent for the contributory negligence of the appellant/plaintiff, James Picken; (7) Order that the first respondent/first defendant Michael John Williamson pay the appellant/ plaintiff James Picken the costs of the proceedings in the court below heard and determined by Puckeridge ADCJ; (8) Order that the first respondent Michael James Williamson pay to the appellant James Picken his costs of the appeal as follows: (a) All costs of the preparation of the appeal as related to the appeal against the first respondent; (b) 50 per cent of the costs of the hearing of the appeal; (9) Order that the appellant James Picken pay to the second respondent Stephen Pastega 80 per cent of his costs of the appeal, such liability for costs to be a joint and concurrent liability with the appellant Rebecca Scott in proceedings CA 2012/47286; (10) Order that the first respondent/first defendant Michael John Williamson pay to the second respondent Stephen Pastega 20 per cent of his costs of the appeal. In the appeal of Rebecca Scott v Michael John Williamson and Stephen Pastega CA 2012/47286: (1)(a) Appeal allowed as against the first respondent/first defendant Michael John Williamson; (b) Appeal dismissed as against the second respondent Stephen Pastega; (2) Set aside verdict in favour of the first respondent/first defendant Michael John Williamson; (3) Set aside the order for costs in the Court below in favour of the first respondent/first defendant Michael John Williamson; (4) Judgment for the appellant/plaintiff Rebecca Scott against the first respondent/first defendant Michael John Williamson; (5) Remit the claim of the appellant Rebecca Scott to the District Court for the determination of damages; (6) Order that the award of damages assessed by the District Court on the remitted hearing on the claim against the first respondent/first defendant Michael John Williamson be reduced by 30 per cent for the contributory negligence of the appellant/plaintiff, Rebecca Scott; (7) Order that the first respondent/first…