Brown v Mawbey [2001] NSWCA 88 (10 April 2001)

Last Updated: 12 April 2001

NEW SOUTH WALES COURT OF APPEAL

CITATION: Brown v Mawbey [2001] NSWCA 88

FILE NUMBER(S):

40925/99

HEARING DATE(S): 27 March 2001

JUDGMENT DATE: 10/04/2001

PARTIES:

Stephen Brown (Appellant)

Stuart Mawbey (Respondent)

JUDGMENT OF: Sheller JA Stein JA Ipp AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 3279/99

LOWER COURT JUDICIAL OFFICER: Patten DCJ

COUNSEL:

J Hislop QC (Appellant/Cross-Respondent)

R McIlwaine SC (Respondent/Cross-Appellant)

SOLICITORS:

Turner Whelan (Appellant)

Marsdens (Respondent)

CATCHWORDS:

TORTS - causation - liability - contributory negligence

PROCEDURE - discretion of trial judge - findings of fact open on the evidence - ND

LEGISLATION CITED:

DECISION:

Appeal dismissed with costs. Cross-appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40925/99

DC 3279/99

SHELLER JA

STEIN JA

IPP AJA

Tuesday, 10 April 2001

Stephen BROWN v Stuart MAWBEY

Facts:

This appeal arises from a motor bike accident which occurred near Jamberoo on 20 December 1994. The respondent lost control of his motor bike while crossing a small wooden bridge, and the appellant, who was following him, struck the respondent while he was on the roadway. The respondent suffered a serious brachial plexus injury as a result. At first instance the appellant was found liable in damages to the respondent, however the respondent's contributory negligence was assessed at 50% and damages reduced accordingly. The appeal challenged the trial judge's findings of fact. The respondent cross-appealed on contributory negligence.

Held:

per Sheller JA, Stein JA and Ipp AJA:

1) The preference of the trial judge for the respondent's evidence, and his reasons for such, was entirely appropriate.

2) The trial judge's findings with respect to causation were unassailable.

3) The trial judge's findings with respect to liability, especially those regarding the point at which the appellant was overtaken by the respondent, were proper and involved no error. His Honour was entitled to rely upon the expert evidence presented by the respondent.

4) The trial judge's conclusion with respect to the apportionment of negligence was well within the discretionary range of percentages, and indeed appropriate in the circumstances.

Orders:

1) Appeal dismissed with costs.

2) Cross-appeal dismissed with costs.

oOo

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40925/99

DC 3279/99

SHELLER JA

STEIN JA

IPP AJA

Tuesday, 10 April 2001

Stephen BROWN v Stuart MAWBEY

JUDGMENT

1    SHELLER JA: I have had the benefit of reading the judgment prepared by Stein JA with which I entirely agree. In substance, this appeal challenged findings of fact which were open on the evidence. Counsel attempted to support the appeal by submitting that the trial Judge in various respects had not referred to or sufficiently analysed parts of the evidence. Reference was made to Mifsud v Campbell (1990) 21 NSWLR 725 and my judgment in McIlvain v The Council of the Shire of Gunnedah (unreported) NSWCA 2 October 1998.

2    Examples of this technique were directed to the trial Judge's reasons for preferring the evidence of the plaintiff. His Honour recognised that there were competing versions of what had happened and accepted that both the plaintiff and the defendant were doing their best to assist the court. His Honour gave what I regard as compelling reasons for accepting that the defendant caused the brachial plexus injury to the plaintiff when his motor cycle ran over the plaintiff's right arm and shoulder, among those reasons that before the impact the plaintiff still had sufficient strength in his right arm to try and lift himself from the road.

3    Similarly on the issue of negligence the defendant's failure in his statement to the police to mention that the plaintiff suddenly overtook him and that the accident occurred before he the defendant had the opportunity to fall behind, support the conclusion that he was travelling too close to the plaintiff or was not paying sufficient attention.

4    The trial Judge accepted the evidence of the plaintiff's consulting engineer, Mr Schnerring, about stopping distances. The defendant's counsel had the opportunity to cross-examine Mr Schnerring, but declined to do so. In those circumstances an argument that it was not open to the trial Judge to accept his evidence must inevitably be rejected.

5    The trial Judge gave a carefully considered judgment. Like Stein JA, I regard the appeal as one without any merit. It should not have been brought. The persons who suffer from this are the parties who have to meet the costs of such appeals.

6    The appeal and cross-appeal should be dismissed with costs.

7    STEIN JA: The appellant, Stephen Brown, appeals against a judgment and verdict of Patten DCJ finding him liable in damages to the respondent plaintiff, Stuart Mawbey, in the sum of $516,129.57. The action arose out of a motor bike accident which occurred near the village of Jamberoo on 20 December 1984. His Honour found for the respondent on liability but reduced the damages by 50% for his contributory negligence.

8    The appellant challenges his Honour's finding on liability, causation, contributory negligence and damages. However, the appeal on quantum of damages was not pressed at the hearing of the appeal. The respondent cross-appeals on the assessment of contributory negligence.

9    Both the appellant and respondent were riding their motor bikes home from work. They were travelling in an easterly direction towards Kiama. At about one kilometre past Jamberoo was a small wooden plank bridge over Collier's Creek.

10    The respondent lost control of his bike on the bridge. He took evasive action by putting the bike down and ended up skidding on the roadway, where according to his case, he was then struck by the appellant's bike.

11    The appellant challenges his Honour's finding on liability on the basis, so it is contended, that the judge did not determine a critical issue, namely the position where the respondent overtook the appellant prior to the accident. The respondent suffered a serious brachial plexus injury in the accident and maintained that the injury was caused by the appellant's bike running over his right arm and shoulder. The appellant submits that the respondent injured his right shoulder when he came into contact with the bridge's guard rail before he left his motor cycle.

Liability

12    The reasons for judgment of his Honour recite the effect of the respondent's evidence that the appellant lead the way from their place of employment to Jamberoo. When they had passed through the village, the respondent took over the lead from the appellant. This happened around 800m before the accident occurred in the vicinity of the wooden bridge. His Honour noted that the appellant's evidence was `somewhat different' to the respondent. The appellant lead the way as they left Jamberoo and slowed down just prior to the bridge. As he did so, the respondent overtook him. The respondent's motor cycle then went out of control and the appellant was unable to avoid striking the respondent's cycle. However, at that time the respondent was not on the cycle having come off earlier in the mishap. According to the appellant, his bike never came into contact with the body of the respondent.

13    These competing versions raised a number of factual issues. First, where did the respondent overtake the appellant? Second, did the appellant run-over the respondent and did that collision cause the brachial plexus injury?

14    His Honour first dealt with the issue of whether the appellant's motor cycle ran over the respondent. The judge noted that the parties were honest witnesses doing their best to assist the court in endeavouring to recall events which occurred 15 years earlier.

15    His Honour said that on this issue he preferred the respondent's evidence. He gave reasons for so finding. These were perfectly appropriate reasons and the finding was clearly open to his Honour. Indeed, in my view it was unappealable.

16    The next question addressed by the judge was that of causation. His Honour considered that the probabilities were that the respondent did strike the safety rail before he came off his bike. However, he accepted the respondent's evidence of having had some strength in his right arm when he tried to lift himself off the road and as to the sensation he experienced upon being run-over. His Honour considered it more probable that this event (of the respondent being run-over) caused the brachial plexus injury rather than the contact with the railing. He noted the opinion of Dr Michael Henderson to this effect, a witness who was not cross-examined. In so finding, his Honour did not accept the most likely scenario advanced by the appellant's witness, Ms Brown. In my opinion, all of these findings were open to his Honour and are unassailable.

17    Patten DCJ then turned to the issue of liability, and, in particular, the dispute on the evidence as to where the respondent overtook the appellant.

18    His Honour again referred to the respondent's version of overtaking the appellant some 800m before the bridge. This was the respondent's evidence in-chief and in cross-examination despite vigorous and persistent questioning by counsel for the defendant. His Honour noted that the appellant had said that the overtaking had occurred `somewhat closer'. However, it is apparent that his Honour discounted the appellant's version of being overtaken quite close to the bridge because it was not part of his statement to the police officer immediately after the accident. This was an appropriate and indeed a powerful observation. One would expect that the appellant would have proffered the explanation to the police officer of the accident occurring almost immediately after being overtaken close to the bridge and before he had time to fall sufficiently behind to avoid such an occurrence. His failure to so explain was clearly relevant to the determination of the factual dispute.

19    A reading of his Honour's reasons makes it plain that on this fundamental issue he preferred the version of the respondent over that of the appellant. While he did not say so explicitly, it is inherent in his reasoning, observations and conclusions.

20    Senior Counsel for the appellant is critical of his Honour for failing to sufficiently analyse the evidence and make key findings. In my view, his Honour was not obliged to set forth, scrutinise and weigh every piece of relevant evidence. His approach was perfectly proper and involves no error.

21    Counsel was also critical of his Honour's reliance on the evidence of the respondent's expert, Mr Schnering, an engineer. His opinion is said to have been based on a false premise. Mr Schnering was available for cross-examination but not required to attend by the appellant. In my opinion, counsel's criticism of his Honour in this regard is unjustified.

22    The report was not objected to and if, as his Honour found, the overtaking occurred 800m from the accident, the conclusions in the report are valid. His Honour was entitled to rely on the opinion and conclude that the appellant was either travelling too close to the respondent or that his perception and reaction time was slow due to inattention. Indeed, the appellant said in evidence that he was around 20m behind the respondent when the respondent lost control of his bike.

23    It is clear that his Honour was perfectly entitled to rely on Mr Schnering's opinion and conclude as he did. He did not need to refer to the evidence of the appellant's expert Mr Wingrove, because his report and opinion was premised upon the appellant's version of where the overtaking by the respondent occurred.

Contributory Negligence

24    His Honour apportioned responsibility for the accident equally between the parties. The appellant submits that the apportionment for contributory negligence against the respondent should be increased from 50%. The High Court has on a number of occasions stressed that issues of apportionment involve questions of individual discretion where minds may differ. Such a finding made by a judge ought not be lightly reviewed. See, for example, Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494. In my opinion, His Honour's conclusion was well within the discretionary range of percentages. Indeed, an analysis of the whole of the relevant evidence leads me to conclude that his Honour's assessment was completely appropriate to the circumstances of the conduct of each party. This conclusion also leads me to determine that the cross-appeal, confined to the issue of contributory negligence, should also be dismissed.

Conclusion

25    It follows from what I have said that both the appeal and cross-appeal ought be dismissed with costs. I add only that it is my view that the appeal was lacking in merit and substance and ought not to have been brought.

26    IPP AJA: I agree with Stein JA.

oOo

LAST UPDATED: 11/04/2001