New South Wales
Court of Appeal
CITATION: Zanner v Zanner [2010] NSWCA 343 HEARING DATE(S): 25 October 2010
JUDGMENT DATE:
15 December 2010JUDGMENT OF: Allsop P at 1; Tobias JA at 14; Young JA at 108 DECISION: (a) Appeal allowed in part.
(b) Set aside the verdict and judgment of the District Court of 27 November 2009 in favour of the respondent against the appellants in the sum of $350,000 and substitute therefor a verdict and judgment for the respondent against the appellants in the sum of $140,000.
(c) The appellants to pay 80% of the respondent’s costs of the appeal but to have a certificate under the Suitor’s Fund Act 1951 if otherwise qualified.
[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: TORTS – negligence – breach of duty – motor vehicle accident – whether scope or content of duty so limited that no breach – first appellant owed respondent duty of care limited to manoeuvring vehicle into carport for three or four metres – first appellant was negligent in failing to keep his foot on brake and prevent it slipping onto accelerator - TORTS – negligence – causation – motor vehicle accident – “factual causation” test imposed by s 5D(1)(a) CLA satisfied – whether “scope of liability” test for causation imposed by s 5D(1)(b) CLA satisfied – no reason why responsibility for harm to respondent should not be imposed upon first appellant - TORTS – negligence – contributory negligence – motor vehicle accident – whether just and equitable to reduce respondent’s damages by 100% pursuant to s 5S CLA – whether apportionment of 50/50 was manifestly inadequate – culpability and causal potency not equal - TORTS – negligence – duty of care – motor vehicle accident – driver of motor vehicle of any age owes duty of care to someone in position of respondent LEGISLATION CITED: Civil Liability Act 2002
Motor Accidents Compensation Act 1999
Road Transport (Driver Licensing) Act 1998CASES CITED: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 239 CLR 420
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Chappel v Hart (1998) 195 CLR 232
Coastwide Fabrication & Erection Pty Ltd v Honeysett [2009] NSWCA 134
Cook v Cook (1986) 162 CLR 376
Elayoubi v Zipser [2008] NSWCA 335
Graham v Hall [2006] NSWCA 208; (2006) 67 NSWLR 135
Harvey v PD [2004] NSWCA 97; (2004) 59 NSWLR 639
Henville v Walker [2001] HCA 52; (2001) 206 CLR 459
Imbree v McNeilly [2008] HCA 40; (2008) 236 CLR 510
Insurance Commissioner v Joyce (1948) 77 CLR 39
Joslyn v…
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- AGLC
- Zanner v Zanner [2010] NSWCA 343
- Case
- [2010] NSWCA 343
- Decision Date
CaseChat Overview and Summary
The appeal concerned a motor vehicle accident where the first appellant, driving a vehicle, collided with the respondent. The dispute centred on whether the first appellant breached a duty of care owed to the respondent, and if so, whether that breach caused the respondent's injuries, and the extent to which any contributory negligence by the respondent should affect damages. The matter was heard in the Court of Appeal of New South Wales.
The primary legal issues before the court were: (1) whether the first appellant owed a duty of care to the respondent, and if so, the scope and content of that duty; (2) whether the first appellant breached that duty of care; (3) whether the breach of duty caused the respondent's injuries, considering the tests for factual causation and the scope of liability under the Civil Liability Act 2002 (NSW); and (4) whether the respondent was contributorily negligent, and if so, the just and equitable apportionment of blame.
The Court of Appeal found that the first appellant, as the driver of a motor vehicle, owed a duty of care to the respondent. While the initial duty might have been limited to manoeuvring the vehicle into a carport, the court determined that the first appellant was negligent in failing to maintain control of the vehicle, specifically by not keeping his foot on the brake and allowing it to slip onto the accelerator. This failure satisfied the factual causation test. Furthermore, the court held that the scope of the first appellant's liability extended to the harm suffered by the respondent, finding no reason to limit responsibility. Regarding contributory negligence, the court concluded that while the respondent was also at fault, the culpability and causal potency of the parties were not equal, and therefore, a 100% reduction in damages was not appropriate.
The Court of Appeal allowed the appeal in part, setting aside the District Court's judgment of $350,000 in favour of the respondent. A substituted judgment was entered for the respondent against the appellants in the sum of $140,000. The appellants were ordered to pay 80% of the respondent's costs of the appeal.
The primary legal issues before the court were: (1) whether the first appellant owed a duty of care to the respondent, and if so, the scope and content of that duty; (2) whether the first appellant breached that duty of care; (3) whether the breach of duty caused the respondent's injuries, considering the tests for factual causation and the scope of liability under the Civil Liability Act 2002 (NSW); and (4) whether the respondent was contributorily negligent, and if so, the just and equitable apportionment of blame.
The Court of Appeal found that the first appellant, as the driver of a motor vehicle, owed a duty of care to the respondent. While the initial duty might have been limited to manoeuvring the vehicle into a carport, the court determined that the first appellant was negligent in failing to maintain control of the vehicle, specifically by not keeping his foot on the brake and allowing it to slip onto the accelerator. This failure satisfied the factual causation test. Furthermore, the court held that the scope of the first appellant's liability extended to the harm suffered by the respondent, finding no reason to limit responsibility. Regarding contributory negligence, the court concluded that while the respondent was also at fault, the culpability and causal potency of the parties were not equal, and therefore, a 100% reduction in damages was not appropriate.
The Court of Appeal allowed the appeal in part, setting aside the District Court's judgment of $350,000 in favour of the respondent. A substituted judgment was entered for the respondent against the appellants in the sum of $140,000. The appellants were ordered to pay 80% of the respondent's costs of the appeal.
Orders
Orders of the court
(a) Appeal allowed in part.
(b) Set aside the verdict and judgment of the District Court of 27 November 2009 in favour of the respondent against the appellants in the sum of $350,000 and substitute therefor a verdict and judgment for the respondent against the appellants in the sum of $140,000.
(c) The appellants to pay 80% of the respondent’s costs of the appeal but to have a certificate under the Suitor’s Fund Act 1951 if otherwise qualified.
[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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