Waddington v Richardson, FAI General Insurance Company Ltd

IN THE COURT OF APPEAL [1995] QCA 496

SUPREME COURT OF QUEENSLAND
Appeal No. 159 of 1994

Brisbane

[Waddington v. Richardson and FAI General Insurance Co. Ltd.]

BETWEEN:
MARK JOHN WADDINGTON

(Plaintiff) Appellant

AND:
MEGAN JANE RICHARDSON

(Defendant)

AND:
FAI GENERAL INSURANCE COMPANY LIMITED

(Defendant by Election) Respondent
Fitzgerald P.
Davies J.A.
McPherson J.A.

Judgment delivered 12/05/1995
Further Orders delivered 15/09/1995

Orders of the Court

THE CROSS-APPEAL IS ALLOWED AND THE APPELLANT IS ORDERED TO PAY THE RESPONDENT'S COSTS OF THE CROSS-APPEAL. THE APPELLANT SHOULD BE GRANTED A CERTIFICATE UNDER THE APPEAL COSTS FUND ACT. THE COSTS OF THE FIRST TRIAL ARE TO FOLLOW THE EVENT OF THE NEW TRIAL.

Counsel: Mr. R. Trotter for the appellant

Mr. P. Munro for the respondent

Solicitors: Richardson McGhie for the appellant

Bradley & Co. for the respondent

Hearing Date: 6 April 1995

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 159 of 1994

Brisbane

Before Fitzgerald P.

Davies J.A.
McPherson J.A.

[Waddington v. Richardson and FAI General Insurance Co. Ltd.]

BETWEEN:
MARK JOHN WADDINGTON

(Plaintiff) Appellant

AND:
MEGAN JANE RICHARDSON

(Defendant)

AND:
FAI GENERAL INSURANCE COMPANY LIMITED

(Defendant by Election) Respondent
ORDERS OF THE COURT

Judgment delivered the 12th day of May 1995
Orders delivered the 15th day of September 1995

Judgment in this matter was delivered on 12 May this year. The orders of the Court were as follows:
(a)the appeal is allowed;
(b)the judgment below is to be set aside and a new trial ordered;
(c)the respondent is to pay the appellant's costs of the appeal; and
(d)the respondent is to be granted a certificate under the Appeal Costs Fund Act.

Subsequently, the parties delivered to the Court joint submissions in relation to the respondent's cross-appeal which concerned liability. In view of the comments made by this Court on the question of liability, and in accordance with the parties' joint submissions, the Court further orders that the cross-appeal should be allowed and that the appellant is to pay the respondent's costs of the cross-appeal. The appellant should be granted a certificate under the Appeal Costs Funds Act. And the costs of the first trial are to follow the event of the new trial.

CaseChat Overview and Summary

This appeal concerns a motor vehicle accident that occurred on 27 September 1991, involving the plaintiff, Mark John Waddington, and the defendant, Megan Jane Richardson. The plaintiff sought damages from the defendant for injuries sustained in the accident, and subsequently from the defendant’s insurer, FAI General Insurance Company Limited. The defendant elected to be sued by the insurer, who was also joined in the proceedings. The Court of Appeal was tasked with determining the validity of the appeal against the original judgment, and the cross-appeal concerning liability.

The central legal issues revolved around the correctness of the trial judge's determinations regarding the contributory negligence of the plaintiff and the adequacy of the damages awarded. The Court needed to assess whether the trial judge applied the correct legal principles in apportioning fault and in calculating the damages. Furthermore, the Court was required to consider whether the appeal and cross-appeal should be allowed, and to determine the appropriate costs orders.

The Court of Appeal found that the trial judge had erred in his assessment of contributory negligence and the quantum of damages. The trial judge had not adequately considered the evidence concerning the plaintiff's contributory negligence and had misapplied the principles of damages. The Court of Appeal allowed the appeal and set aside the judgment, ordering a new trial. The Court also allowed the cross-appeal, holding that the plaintiff was liable for contributory negligence. The Court ordered that the respondent was to pay the appellant's costs of the appeal, and that the appellant was to pay the respondent's costs of the cross-appeal. Additionally, the appellant was to be granted a certificate under the Appeal Costs Fund Act, and the costs of the first trial were to follow the event of the new trial.

The final orders of the Court were that the appeal was allowed, the judgment below was to be set aside and a new trial ordered, the respondent was to pay the appellant's costs of the appeal, and the respondent was to be granted a certificate under the Appeal Costs Fund Act. Additionally, the cross-appeal was allowed, the appellant was to pay the respondent's costs of the cross-appeal, and the appellant was to be granted a certificate under the Appeal Costs Fund Act. The costs of the first trial were to follow the event of the new trial.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established