Stuart v Walsh

Case [2012] NSWCA 186

Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Stuart v Walsh [2012] NSWCA 186
Hearing dates:15 May 2012
Decision date: 25 June 2012
Before: Bathurst CJ at 1; Basten JA at 2; Tobias AJA at 3
Decision:

(a)Appeal allowed.

(b)Set aside the verdict, judgment and orders made by North DCJ on 31 March 2011 and in lieu thereof there be a verdict and judgment for the appellants.

(c)Set aside the orders for costs made by North DCJ on 17 June 2011 and in lieu thereof the respondent to pay the appellants' costs of the proceedings at first instance.

(d)The respondent to pay the appellants' costs of the appeal but to have a certificate under the Suitor's Fund Act 1951, if otherwise qualified.

[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.]

Catchwords:

NEGLIGENCE - personal injury from traffic accident involving bicycle rider - appeal against the primary judge's orders challenging his finding of negligence and his assessment of contributory negligence.

NEGLIGENCE - duty of care - breach - question of fact - whether the appellant's response to the risk created was unreasonable or indicative of a lack of reasonable care in the circumstances - application of the principle of agony of the moment - only with the benefit of hindsight could criticism be levelled at the appellant's response.

NEGLIGENCE - findings of negligence could not be sustained - appeal allowed and verdict, judgment and orders of the primary judge set aside - verdict and judgment for the appellants.
Legislation Cited: Civil Liability Act 2002
Suitor's Fund Act 1951
Cases Cited: Abdallah v Newton (1998) 28 MVR 364
Antypas v McKeon [2001] NSWCA 417; (2001) 35 MVR 121
Byrnes v Snare (1986) 4 MVR 97
Leishman v Thomas (1957) 75 WN(NSW) 173
Vale v Eggins [2006] NSWCA 348; (2006) 46 MVR 514
Category:Principal judgment
Parties: Mark Alwyn STUART (First Appellant)
PILKINGTON AUSTRALIA LIMITED (Second Appellant)
Daniel James WALSH (Respondent)
Representation: Counsel:
P J Deakin QC/ G T Young (Appellants)
P E Blacket SC/ G R Graham (Respondent)
Solicitors:
TL Lawyers (Appellants)
Philip Watson Pty Ltd (Respondent)
File Number(s):2011/132314
 Decision under appeal 
Date of Decision:
2011-03-31 00:00:00
Before:
Judge North DCJ
File Number(s):
2009/339412

Judgment

  1. BATHURST CJ: I agree with Tobias AJA.

  1. BASTEN JA: I agree with the orders proposed by Tobias AJA and with his reasons.

  1. TOBIAS AJA: At approximately 4pm on 28 May 2007 the respondent, Dr Daniel Walsh (Dr Walsh), was struck and injured by a truck owned by the second appellant and driven by its employee the first appellant, Mr Mark Stuart (Mr Stuart). The respondent instituted proceedings…

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AGLC
Stuart v Walsh [2012] NSWCA 186
Case
[2012] NSWCA 186
Decision Date

CaseChat Overview and Summary

Stuart (appellant) appealed to the Court of Appeal of New South Wales against orders made by the primary judge finding him negligent and contributorily negligent in a traffic accident involving a bicycle rider. The appeal challenged both the finding of negligence and the assessment of contributory negligence.

The legal issues before the Court of Appeal were whether the primary judge erred in finding that the appellant's response to the risk created by the circumstances was unreasonable or indicative of a lack of reasonable care, and whether the principle of the "agony of the moment" was applicable. The court was required to determine if the appellant's actions, viewed with the benefit of hindsight, could be criticised as negligent.

The Court of Appeal found that the primary judge's findings of negligence could not be sustained. The court applied the principle that a person's response to a sudden and unexpected danger, particularly when acting under duress or in the "agony of the moment," should not be judged with the benefit of hindsight. The court concluded that the appellant's reaction to the risk was not unreasonable in the circumstances.

Consequently, the appeal was allowed, and the verdict, judgment, and orders of the primary judge were set aside. A verdict and judgment were entered for the appellants, and the respondent was ordered to pay the appellants' costs of the proceedings at first instance and the costs of the appeal, with a certificate under the Suitor's Fund Act 1951 available if otherwise qualified.

Orders

Orders of the court

(a)Appeal allowed.

(b)Set aside the verdict, judgment and orders made by North DCJ on 31 March 2011 and in lieu thereof there be a verdict and judgment for the appellants.

(c)Set aside the orders for costs made by North DCJ on 17 June 2011 and in lieu thereof the respondent to pay the appellants' costs of the proceedings at first instance.

(d)The respondent to pay the appellants' costs of the appeal but to have a certificate under the Suitor's Fund Act 1951, if otherwise qualified.

[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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