Townsend v O'Donnell

[2016] NSWCA 288

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 appeal
Catchwords:	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 20
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW) ss 81, 126, 138 Civil Liability Act 2002 (NSW) ss 3B(2),5B, 5R, 5S, 55
Cases 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 33
Category:	Principal judgment
Parties:	Maureen Townsend (Appellant) Phillip O’Donnell (Respondent)
Representation:	Counsel:   R.R. Bartlett SC (Appellant)       R. McIlwaine SC (Respondent)       R.E. Quickenden   Solicitors:   Moray & Agnew (Appellant)       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

1. 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.

2. McCOLL JA: I agree with Sackville AJA.

3. 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).

4. 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…