BOWDEN v METHAM [1992] NSWCA 25

BOWDEN v METHAM SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY JA, PRIESTLEY JA, HANDLEY JA 10 February 1992, 12 March 1992 [1992] NSWCA 25

NEGLIGENCE — DUTY OF CARE OWED BY OPERATOR OF TRACTOR SLASHER CONTRIBUTORY NEGLIGENCE APPORTIONMENT APPEAL — REVIEW OF TRIAL JUDGE'S FINDINGS OF FACT — CREDIBILITY OF WITNESSES — FINDINGS ON CREDIBILITY PARTLY BASED ON IMPERMISSIBLE INFERENCES FROM PROVED OR ADMITTED FACTS — ORDER FOR NEW TRIAL NEGLIGENCE — Duty of care owed by operator of tractor slasher contributory negligence — apportionment APPEAL — Review of Trial Judge's Findings of Fact — credibility of witnesses — findings on credibility partly based on impermissible inferences from proved or admitted facts — order for new trial HELD (Priestley and Handley JJA; Mahoney JA dissenting): (1) The Trial Judge had drawn impermissible inferences from proved or admitted facts in reaching his conclusion as to the credibility of the parties. (2) There had to be a new trial therefore at least on the issue of apportionment. (3) Since the issue of apportionment could not be severed from the issues of negligence and contributory negligence, there must be a general new trial on the question of liability.

CASES Deane v The City Bank (1904) 2 CLR 198 Anmstrong v Great Southern Gold Mining (1911) 12 CLR 382 Balenzuela v De Gail (1959) 101 CLR 226 Abalos v Australian Postal Commission (1990) 171 CLR 167

Mahoney JA On 11 May 1982 the defendant was operating a tractor slasher on the plaintiff's premises. The blades of the slasher picked up a piece of wire. The wire was whipped round the slasher. The plaintiff was standing only a short distance from the slasher. The wire coiled around his right leg and the result was that the lower part of that leg was amputated.

The plaintiff sued the defendant in negligence. The defendant pleaded contributory negligence. On 23 August 1989 his Honour Judge Conomos found the defendant negligent. He assessed the plaintiff's total damages as $305,785. He found the plaintiff guilty of contributory negligence and reduced the damages by one-third. Accordingly, he gave judgment for the plaintiff for $225,785