SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title:
Steen v Senton by his litigation guardian The Public Advocate of the Australian Capital Territory
Citation:
[2015] ACTCA 57
Hearing Date:
4 May 2015
DecisionDate:
6 November 2015
Before:
Refshauge, Penfold and Rangiah JJ
Decision:
1. The appeal be upheld in part.
2. The judgment of the Master given on 3 August 2012 be varied by:
a. Assessing the contributory negligence of Trevor Videan Senton as 50% and reducing the damages payable by that percentage;
b. Recalculating the portion of the damages payable for care while Trevor Videan Senton is in an aged care facility
3. The parties provide, within seven working days, a calculation of the amount payable for care in an aged care facility in accordance with the reasons of the Court in the form of a draft order but, if not agreed, precise details of the basis on which each party’s calculation is made.
4. There be no order as to the costs of the appeal
Category:
Principal Judgment
Catchwords:
NEGLIGENCE – Contributory negligence – apportionment of liability – whether ss 5R and 5B of the Civil Liability Act 2002 (NSW) depart from common law position – whether driver of motor vehicle subject to higher culpability than pedestrian – where Master ought to have applied ss 5R and 5B – where application of ss 5R and 5B holds driver and pedestrian to same standard of care – driver and pedestrian equally responsible for collision
DAMAGES – Calculation of damages – whether Master erred in calculating life expectancy – where inconsistencies found in Master’s findings – whether Master erred in calculating allowance for commercial care – where allowance found to be too speculative
PRACTICE AND PROCEDURE – New argument raised on appeal – whether in interests of justice to allow new argument – where appellant relies on decisions of intermediate appellate courts delivered after trial – where new argument dispositive of appeal – where intermediate appellate court should not depart from decisions of equivalent courts – new argument allowed
[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
AGLC
Steen v Senton [2015] ACTCA 57
Case
[2015] ACTCA 57
Decision Date
CaseChat Overview and Summary
This matter came before the New South Wales Court of Appeal, constituted by Refshauge, Penfold and Rangiah JJ, on appeal from a decision of a Master. The dispute concerned the apportionment of liability for a motor vehicle accident and the calculation of damages awarded to the respondent, Mr. Senton, who was a pedestrian involved in the collision with the appellant, Mr. Steen, who was the driver.
The Court was required to determine whether the Master had erred in applying the principles of contributory negligence under sections 5R and 5B of the *Civil Liability Act 2002* (NSW), and whether these provisions mandated a departure from the common law position regarding the standard of care owed by drivers and pedestrians. Additionally, the Court had to consider whether the Master had made errors in calculating the respondent's life expectancy and the allowance for commercial care, particularly in light of inconsistencies in the Master's findings and the speculative nature of the care allowance. The Court also considered whether to permit a new argument to be raised on appeal, which relied on intermediate appellate court decisions delivered after the trial and which was potentially dispositive of the appeal.
The Court held that sections 5R and 5B of the *Civil Liability Act 2002* (NSW) required both the driver and the pedestrian to be held to the same standard of care, meaning they were equally responsible for the collision. Consequently, the Court varied the Master's judgment to assess the contributory negligence of Mr. Senton at 50%, thereby reducing the damages payable by that percentage. The Court also found that the Master had erred in calculating the allowance for commercial care while Mr. Senton was in an aged care facility, deeming it too speculative. The Court therefore ordered that this portion of the damages be recalculated. The appeal was upheld in part, with the parties directed to provide a calculation for the aged care facility costs. There was no order as to the costs of the appeal.
Orders
Orders of the court
1. The appeal be upheld in part.
2. The judgment of the Master given on 3 August 2012 be varied by:
a. Assessing the contributory negligence of Trevor Videan Senton as 50% and reducing the damages payable by that percentage;
b. Recalculating the portion of the damages payable for care while Trevor Videan Senton is in an aged care facility
3. The parties provide, within seven working days, a calculation of the amount payable for care in an aged care facility in accordance with the reasons of the Court in the form of a draft order but, if not agreed, precise details of the basis on which each party’s calculation is made.
4. There be no order as to the costs of the appeal