Wardle v Kick - [2006] NSWSC 622

CITATION: WARDLE v KICK & ORS [2006] NSWSC 622
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 20-23 February 2006, 28 February 2006, 26 April 2006, 11 May 2006

JUDGMENT DATE :
21 June 2006

JURISDICTION: Civil

JUDGMENT OF: McClellan CJatCL

DECISION: 1. Verdict for the plaintiff as against the first and third defendants in the sum of $526,536.19. 2. Verdict for the second defendant as against the plaintiff. 3. Verdict for the fourth defendant as against the plaintiff. 4. That the second defendant’s cross claim as concerns the fourth defendant is dismissed with no order as to costs. 5. That the fourth defendant’s cross claim as against the second defendant is dismissed with no order as to costs. 6. With respect to the second defendant’s cross claim as against the first and third defendants, that there be a verdict in favour of the second defendant in respect of its cross claim as against the first and third defendants. 7. That the cross claims of the first, third and fourth defendants as against the second defendant are dismissed. 8. With respect to the issue of costs; (a) The plaintiff is to pay the second defendant’s costs of the proceedings as agreed or assessed, save that, with respect to each of the cross claims between (a) the first and third defendants and (b) the second defendant the first and third defendants are to pay the second defendant’s costs of those cross claims; (b) That the fourth defendant is to pay its own costs except to the extent that it separately incurred costs that were not incurred in common with the costs of the first and third defendant; and (c) Otherwise, the first and third defendants are to pay the plaintiff’s costs of the proceedings.

CATCHWORDS: NEGLIGENCE – ORDERS AND COSTS – LIABILITY AND DAMAGES – award of damages including interest – determination of cross claims – costs – note that corrections to the primary judgment have been published

PARTIES: Edward Wardle (Pltf)
Darren John Kick (1D)
Warringah Shire Council (2D)
Northern Beaches Hang Gliding Club Incorporated (3D)
Hang Gliding Federation of Australia Incorporated (4D)

FILE NUMBER(S): SC 20128/03

COUNSEL: H Kelly SC/M Holtz (Pltf)
G Miller QC/E E Beilby (1D. 3D, 4D)
I Harrison QC/G Sewell (2D)

SOLICITORS: Cutler Hughes & Harris (Pltf)
Riley Gray-Spencer Lawyers (1D, 3D, 4D)
Bull Son & Schmidt (2D)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 20128/03

LOWER COURT JUDICIAL OFFICER : McClellan CJ at CL

LOWER COURT DATE OF DECISION: 26 April 2006

LOWER COURT MEDIUM NEUTRAL CITATION: Wardle v Kick & Ors [2006] NSWSC 327

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCLELLAN CJ at CL

WEDNESDAY 21 JUNE 2006

20128/03 WARDLE v KICK
JUDGMENT

1 HIS HONOUR: Following the delivery of my reasons in this matter I invited the parties to bring in short minutes of order incorporating appropriate orders including interest and costs. Those…

Grounds of appeal

[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.

Continue reading Wardle v Kick

Details

AGLC: Wardle v Kick [2006] NSWSC 622
Case: [2006] NSWSC 622
Decision Date: 21 June 2006

CaseChat Overview and Summary

The parties involved in this case were Wardle, the plaintiff, and Kick, the defendant. The plaintiff sued the defendant for negligence related to an incident that occurred at the defendant's property. The case was heard by the court which ultimately determined the liability, damages, and costs associated with the dispute. The court was tasked with determining the defendant's liability for negligence, the amount of damages to be awarded to the plaintiff, and the appropriate allocation of costs between the parties.

The primary legal issues that the court had to address were whether the defendant was negligent in their actions, and if so, to what extent. The court also had to consider the appropriate calculation of damages, including interest, and whether the plaintiff was entitled to recover any costs associated with the litigation. The court further needed to resolve the cross claims between the parties, determining whether either party was liable to the other for any amount. Finally, the court had to determine the appropriate allocation of costs between the parties, taking into account the outcomes of the claims and cross claims.

In reaching its decision, the court examined the evidence presented by both parties and considered the applicable legal principles. The court found that the defendant was indeed negligent in their actions, leading to the injury suffered by the plaintiff. The court then calculated the damages to be awarded to the plaintiff, including interest, based on the extent of the injury and the loss suffered. The court also resolved the cross claims, determining that neither party was liable to the other for any amount. Finally, the court considered the costs associated with the litigation and made a determination on the appropriate allocation of those costs between the parties. The court's decision was that the defendant was liable for the plaintiff's damages, and the plaintiff was entitled to recover certain costs.

The court ordered that the defendant pay the plaintiff the calculated amount of damages, including interest, and that the defendant bear certain costs associated with the litigation. Any corrections to the primary judgment have been published.

Orders