Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Maureen Townsend v Phillip O’Donnell [2016] NSWCA 288 Hearing dates: 6 October 2016 Decision date: 19 October 2016 Before: Beazley ACJ at [1]
McColl JA at [2]
Sackville AJA at [3]Decision: 1. Appeal dismissed
2. The appellant pay the respondent’s costs of the appealCatchwords: TORTS – contributory negligence – collision between motor vehicle leaving driveway and motorcycle driven by postman – breach of duty by driver of motor vehicle conceded – whether primary Judge erred in finding no contributory negligence – whether primary Judge erred in findings as to the motor vehicle’s speed and the postman keeping a proper lookout
DAMAGES – whether primary Judge erred in assessing damages for future economic loss – whether primary Judge applied the principles stated in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) ss 81, 126, 138
Civil Liability Act 2002 (NSW) ss 3B(2),5B, 5R, 5S, 55Cases Cited: Amoud v Al Batat [2009] NSWCA 333
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34
Lujans v Yarrabee Coal Company Pty Ltd [2008] HCA 51; 83 ALJR 34
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20
Manley v Alexander [2005] HCA 79; 80 ALJR 413
Mead v Kerney [2012] NSWCA 215
Nominal Defendant v Livaja [2011] NSWCA 121
O’Donnell v Townsend (Unrep, 17 December 2015, District Court)
Tran v Nominal Defendant [2011] NSWCA 220; 58 MVR 462
Warren v Gittoes [2009] NSWCA 24
Williams v Commissioner for Road Transport and Tramways (New South Wales) (1933) 50 CLR 258; [1933] HCA 33Category: Principal judgment Parties: Maureen Townsend (Appellant)
Phillip O’Donnell (Respondent)Representation: Counsel: R.R. Bartlett SC (Appellant)
Solicitors: Moray & Agnew (Appellant)
R. McIlwaine SC (Respondent)
R.E. Quickenden
Peninsula Law (Respondent)
File Number(s): 2016/5906 Decision under appeal
- Court or tribunal:
- District Court of New South Wales
- Citation:
- O’Donnell v Townsend (Unrep, 17 December 2015, District Court)
- Date of Decision:
- 17 December 2015
- Before:
- Olsson DCJ
- File Number(s):
- 2012/373319
Judgment
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BEAZLEY ACJ: I have had the advantage of reading in draft the reasons of Sackville AJA. I agree with his Honour’s reasons and proposed orders.
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McCOLL JA: I agree with Sackville AJA.
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SACKVILLE AJA: The respondent brought proceedings in the District Court against the appellant claiming damages for personal injuries the respondent sustained in a motor vehicle accident that occurred on 5 August 2010. The primary Judge (Olsson DCJ) gave judgment for the respondent in the sum of $1,480,982.55. [1] This sum included $496,204.00 for future economic loss.
1. O’Donnell v Townsend (Unrep, 17 December 2015, District Court) (Primary Judgment).
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The background to the respondent’s claim was succinctly described by the primary Judge as follows: [2]
“The plaintiff was a postman employed by Australia Post. He was undertaking his regular round of postal…
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- AGLC
- Townsend v O'Donnell [2016] NSWCA 288
- Case
- [2016] NSWCA 288
- Decision Date
CaseChat Overview and Summary
The central legal issues before the appellate court were whether the primary judge erred in finding no contributory negligence by the respondent, and whether the primary judge erred in their findings concerning the motor vehicle's speed and the respondent's maintenance of a proper lookout. Additionally, the appeal questioned whether the primary judge erred in assessing damages for future economic loss, specifically in the application of the principles established in *Malec v JC Hutton Pty Ltd*.
The court dismissed the appeal, upholding the primary judge's findings. The reasoning involved a careful review of the evidence presented at trial, particularly concerning the appellant's actions in exiting the driveway and the respondent's conduct. The court applied established principles of negligence and contributory negligence, finding no error in the primary judge's assessment of the facts and the application of the law. The assessment of future economic loss was also found to be consistent with the principles in *Malec v JC Hutton Pty Ltd*.
Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.
Orders
Orders of the court
1. Appeal dismissed
2. The appellant pay the respondent’s costs of the appeal
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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