Walker v Lee [2011] NSWSC 108

Supreme Court New South Wales

Medium Neutral Citation: Walker v Lee [2011] NSWSC 108 Hearing dates: Thursday 5 August 2010 Decision date: 03 March 2011 Jurisdiction: Common Law - Administrative Law Before: Hall J Decision: (1) Appeal dismissed. (2) Unless application is made within 14 days seeking any contrary order on costs, the appellant is to pay the respondent's costs of and incidental to the appeal. Catchwords: ADMINISTRATIVE LAW - appeal from Local Court - motor vehicle accident caused by negligent driving - extent of reasons required for decision - whether Magistrate in error for failing to explain rejection of expert evidence - opinions based on assumed facts not verified - approach to fact-finding with disputed eye-witness evidence - no question of law Legislation Cited: Local Court Act 2007 Cases Cited: Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 McCarthy v NRMA Insurance [2002] NSWSC 1011 Sasterawan v Morris [2008] NSWCA 30 Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 Category: Principal judgment Parties: David Michael WALKER Andrew Geoffrey LEE Representation: Counsel: P: P Cummings D: G Van der Vlag Solicitor: P: Moray & Agnew D: Streeterlaw File Number(s): 2009/297159

Judgment 1These proceedings were commenced by summons filed on 27 November 2009 in which the appellant, David Michael Walker, appeals from the decision of the Local Court at Casino given on 5 November 2009. 2The proceedings were brought in the Local Court by the respondent to the present proceedings, Andrew Geoffrey Lee, who, as the moving party before the Local Court, sought judgment in respect of a property claim arising out of a motor vehicle accident that occurred on 10 May 2008. 3The respondent (Mr Lee) commenced proceedings by statement of claim in the Local Court claiming damages in the amount of $16,115.50 in respect of the loss of his motorcycle involved in the abovementioned accident. He asserted that the loss and damage sustained by him was a consequence of the appellant's negligence. 4The appellant (Mr Walker) was, on the day in question, driving in a north-easterly direction on the Kyogle Road near Cawongla. He was driving a four wheel drive vehicle to which was attached a horse float. 5Mr Lee alleged that Mr Walker, whilst driving his vehicle (a Mitsubishi Pajero) allowed the wheels of the trailer to cross over the double unbroken white separation lines and into the lane in which Mr Lee was proceedings. 6The defence in the Local Court was dated 18 June 2009. Negligence was denied and contributory negligence was alleged against Mr Lee. The particulars of negligence were:- "(a) Failing to take care of his own safety. (b) Failing to keep a proper lookout. (c) Driving at excessive speed in the circumstances. (d) Driving too close to the centre dividing lane." 7It is to be noted, as the learned Magistrate observed in his decision, that no allegation was raised in the particulars of contributory negligence that Mr Lee had driven over the white separation lines into the incorrect side of the road. 8The parties to the proceedings in the Local Court had agreed on a quantum and, accordingly, liability was the only issue for determination. 9On 5 November 2009, the learned Magistrate delivered an ex tempore judgment in favour of Mr Lee but found against him on contributory negligence, his claim, accordingly, being reduced by 40%. Judgment was given in favour of Mr Lee in the sum of $9,669.30 together with costs and interest from 20 May 2009. 10In the summons, eight grounds of appeal were relied upon in the following terms:- "1. Failing to give reasons for rejecting the evidence of the Plaintiff and by inference preferring the evidence called by the Defendant as to where the wheels of the motorcycle were on the road leading up to and at the time of impact, in circumstances where the Appellant's evidence was clear and unaltered in cross-examination and was supported by expert opinion; 2. Wrongly rejecting by inference the Appellant's evidence as to the existence of a gouge mark on the road; 3. Failing to give reasons for rejecting the Appellant's evidence as to the presence of the gouge mark on the road as a result of the collision; 4. Failing to give reasons for rejecting the evidence of the 'Traffic Engineering Expert, Michael Griffiths, as to the point of impact based on, primarily, the presence of the gouge mark; 5. [Apparently] making factual findings based upon matters not in evidence, namely:- (a) the extent of the severity of the Respondent's injury; (b) the contents of particulars of the Defence on which unspecified and unjustified significance was placed. 6. Failing to give proper weight to the Appellant's evidence as to his driving leading up to and at the time of impact; 7. Failing to give proper weight to the totality of the expert evidence and, in particular, the evidence as to the presence and significance of the gouge marks; and 8. Failing to apply correctly the terms of the onus of proof resting on the Respondent." 11The appellant, Mr Walker, relied upon written submissions dated 11 May 2010. These were supplemented at the hearing of the appeal. 12The respondent, Mr Lee, relied upon outline submissions dated 2 July 2010. These were also supplemented by oral submissions. 13At the hearing, an application was sought to supplement the grounds of appeal with the following:- "The learned magistrate erred at law in holding that:- 1. The evidence of Mr Midgley was that 'the motorcycle flipped and kept going' after the accident, and 2. that there was no evidence before the Court other than that of Mr Midgley as to where the motorcycle came to rest, in circumstances where there was no evidence to support these findings and, in fact, the evidence was to the contrary."