Watt v Copmanhurst Shire Council - [2005] NSWSC 7

CITATION:
Watt v Copmanhurst Shire Council [2005] NSWSC 7

HEARING DATE(S): 25 October-4 November, 8-11 November, 15-17 November 2004.

JUDGMENT DATE :

2 February 2005

JURISDICTION:
Common Law Division

JUDGMENT OF:
Studdert J

DECISION:
(1) I find negligence to have been proved. (2) I find contributory negligence to have been proved. (3) Total damages are agreed at $6,500,000. (4) I find it to be just and equitable, having regard to the plaintiff's share in the responsibility for the damage, that the plaintiff's damages should be reduced by one-third. (5) Accordingly, (omitting cents) damages are awarded to the plaintiff in the sum of $4,333,333. (6) Costs are reserved.

CASES CITED:
Australian Capital Territory v Kitt [2004] NSWCA 444
Jones v Dunkel (1959) 101 CLR 298
Manly Council v Byrne [2004] NSWCA 123
Nambucca Shire Council v Connor [2004] NSWCA 13
Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 alr 532

PARTIES:
Jon Watt (Plaintiff)
Copmanhurst Shire Council (Defendant)

FILE NUMBER(S):
SC 20186/01

COUNSEL:
B.M. Toomey QC/M.A. Kumar (Plaintiff)
M.T. McCulloch SC/D. Villa (Defendant)

SOLICITORS:
MBP Legal (Plaintiff)
Phillips Fox (Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

STUDDERT J

Wednesday 2 February 2005

20186/01 JON WATT v COPMANHURST SHIRE COUNCIL
JUDGMENT

1 HIS HONOUR: In this cause the plaintiff, Jon Watt, sues Copmanhurst Shire Council seeking damages in respect of severe spinal injury suffered after a vehicle the plaintiff was driving left the roadway.

2 Proceedings were commenced against the Roads and Traffic Authority of New South Wales as first defendant and Copmanhurst Shire Council as second defendant. As against each defendant, the plaintiff’s claim was pleaded in negligence, the central allegation being that the accident occurred by reason of negligence associated with the conduct of roadworks. Each defendant denied negligence and pleaded contributory negligence and cross claims were pleaded as between the two defendants. Settlement was reached in relation to the proceedings against the first defendant, judgment being entered in its favour on the plaintiff’s claim, and the cross claims were accordingly dismissed. So it is that the action proceeded to trial only as between the plaintiff and the defendant council.

3 The parties have agreed that if the plaintiff is successful on the issue of liability, his damages should be measured at $6,500,000, subject to any deduction, if appropriate, for contributory negligence. That agreement is recorded in Exhibit P, and the parties are to be congratulated upon reaching it.

4 The accident giving rise to this claim occurred on the Summerland Way north of Grafton at approximately 4.00 pm on 24 March 1998. That road was described in the evidence as running generally north and south between Casino and Grafton. The road had a bitumen surface and gravel shoulders. The evidence established that the plaintiff’s vehicle, after leaving the roadway, collided with an embankment on the eastern side and came to rest at a point approximately 200 metres north of the intersection of Summerland Way and Gurranang Railway Station Road.…

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 Watt v Copmanhurst Shire Council

Details

AGLC: Watt v Copmanhurst Shire Council [2005] NSWSC 7
Case: [2005] NSWSC 7
Decision Date: 2 February 2005

CaseChat Overview and Summary

Jon Watt sued Copmanhurst Shire Council for damages for a spinal injury he suffered in a motor vehicle accident. The plaintiff's vehicle left the roadway and collided with an embankment after the plaintiff took evasive action to avoid a kangaroo. The plaintiff's claim was that the accident occurred because of loose gravel on the bitumen surface of the road. The defendant denied negligence and pleaded contributory negligence. The case proceeded to trial between the plaintiff and the defendant council only. The parties had agreed that if the plaintiff succeeded in proving negligence, his damages should be measured at $6,500,000, subject to any deduction, if appropriate, for contributory negligence. The court found the plaintiff to have proved negligence. The court found the plaintiff's evidence that he saw a kangaroo on the road to be credible and found that the appearance of kangaroos on the road, particularly at the time that the plaintiff's accident happened, was an event that might reasonably be expected to occur. The court also found that the presence of loose gravel on the bitumen surface of the road created a hazard for a motorist attempting to brake and change direction on such a surface. The court found the defendant to be in breach of its duty of care to road users, as it had failed to take reasonable precautions directed towards the safety of road users crossing the affected area. The court found the defendant to be negligent in permitting the road surface to remain in the condition which the plaintiff encountered and in failing to warn of the presence of loose gravel. The court found the defendant's negligence to be causative of the accident. The court found the plaintiff to have been contributorily negligent, as he had failed to exercise reasonable care for his own safety by not reducing his speed below 80 kph, the speed at which he was travelling when he first saw the kangaroo. The court found it just and equitable to reduce the plaintiff's damages by one-third because of his contributory negligence. Accordingly, damages were awarded to the plaintiff in the sum of $4,333,333. Costs were reserved.

Orders