Watson v Meyer

Case [2013] NSWCA 243

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Watson v Meyer [2013] NSWCA 243
Hearing dates:6 June 2013
Decision date: 02 August 2013
Before: Macfarlan JA at [1]
Ward JA at [2]
Gleeson JA at [87]
Decision:

1. Appeal allowed.

2. Judgment for the defendant entered in the proceedings below be set aside.

3. The matter be remitted to the District Court for re-trial on all issues.

4. Respondent to pay the appellant's costs of the appeal.

5. Vacate orders made as to the costs of the first hearing. Order that costs of the first hearing be determined by the trial judge hearing the matter on remittal.

6. The respondent to have a certificate under the Suitors' Fund Act, 1951, if 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:

APPEAL AND NEW TRIAL - adequacy of reasons

NEGLIGENCE - duty of care - breach - causation - whether risk obvious - whether risk voluntarily accepted - contributory negligence

PROCEDURE - whether Civil Liability Act defences can be relied on when not pleaded - whether adequate particulars of negligence
Legislation Cited: Civil Liability Act 2002
Cases Cited: Abdel Naser Qushair v Naji Raffoul [2009] NSWCA 329
Adams by her next friend O'Grady v State of New South Wales [2008] NSWSC 1257
Basha v Vocational Capacity Centre Pty Ltd [2009] NSWCA 409
Carey v Lake Macquarie City Council [2007] NSWCA 4; (2007) Aust Torts Reports 81-874
Fallas v Mourlas [2006] NSWCA 32; (2006) 65 NSWLR 418
Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services [2000] 1 All ER 373
Hehir v Harvie & Duffield [1949] SASR 77
Hrybynyuk v Mazur [2004] NSWCA 374; (2004) Aust Torts Reports 81-774
Jones v Bradley [2003] NSWCA 81
Mackenzie v The Nominal Defendant [2005] NSWCA 180; (2005) 43 MVR 315
Mifsud v Campbell (1991) 21 NSWLR 725
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247
Tomasetti v Brailey [2012] NSWCA 399
Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816
Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697
Wynbergen v Hoyts Corp Pty Ltd (1997) 149 ALR 25
Category:Principal judgment
Parties: Lorna Watson (Appellant)
Alan Meyer (Respondent)
Representation: Counsel:
Dr A S Morrison RFD SC with A L McSpedden (Appellant)
P Menzies QC with J R Wilson (Respondent)
Solicitors:
Graham Jones Lawyers (Appellant)
Stacks/The Law Firm (Respondent)
File Number(s):CA 2012/147724
 Decision under appeal 
Jurisdiction:
9101
Citation:
Watson v Meyer
Date of Decision:
2012-04-16 00:00:00
Before:
Gibson DCJ
File Number(s):
DC 2010/233997

Judgment

  1. MACFARLAN JA: I agree with Ward…

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AGLC
Watson v Meyer [2013] NSWCA 243
Case
[2013] NSWCA 243
Decision Date

CaseChat Overview and Summary

In *Watson v Meyer*, the Court of Appeal of New South Wales considered an appeal from a judgment entered in favour of the defendant, Meyer, in proceedings brought by the plaintiff, Watson. The dispute concerned allegations of negligence arising from an incident where Watson sustained injuries.

The primary legal issues before the Court of Appeal were whether the trial judge had provided adequate reasons for the decision, and whether the trial judge had erred in their findings regarding the existence of a duty of care, breach of that duty, and causation. Further questions arose concerning whether the defendant could rely on defences under the *Civil Liability Act 2002* (NSW) when these had not been specifically pleaded, and whether the particulars of negligence provided by the plaintiff were sufficient.

The Court of Appeal found that the reasons provided by the trial judge were inadequate, particularly in relation to the assessment of obvious risk and voluntary assumption of risk. The Court determined that the trial judge had not adequately addressed the evidence or applied the relevant legal principles to the facts. Consequently, the Court allowed the appeal, set aside the judgment for the defendant, and remitted the matter to the District Court for a re-trial on all issues. The costs of the appeal were awarded to the appellant, Watson, and the costs of the first hearing were to be determined by the judge presiding at the re-trial.

Orders

Orders of the court

1. Appeal allowed.

2. Judgment for the defendant entered in the proceedings below be set aside.

3. The matter be remitted to the District Court for re-trial on all issues.

4. Respondent to pay the appellant's costs of the appeal.

5. Vacate orders made as to the costs of the first hearing. Order that costs of the first hearing be determined by the trial judge hearing the matter on remittal.

6. The respondent to have a certificate under the Suitors' Fund Act, 1951, if 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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