MOWLEM v CHISHOLM [1996] NSWCA 373

MOWLEM v CHISHOLM [1996] NSWCA 373

The appeal on liability was upheld because findings of negligence were based on a ground not pleaded or litigated, amounting to procedural unfairness. There will be a new trial limited to the allegation that the appellant drove too close to parked vehicles. The assessment of damages stands at $2,086,740 in the event of liability being established.

Parties
Appellant: Joseph Mowlem; Respondent: Scott William Chisholm
Jurisdiction
Australia
Judgment Date
18 December 1996
Procedural Posture
Civil Appeal / Judgment on Appeal and Cross Appeal
Outcome
Appeal upheld; cross-appeal dismissed; new trial on limited liability issue; damages pre-set in event of liability ($2,086,740); costs orders as specified.
Legal Topics
Negligence, Procedural Fairness, Motor Vehicle Accident, Assessment of Damages
Tort Law Negligence Procedural Fairness Motor Vehicle Accident Assessment of Damages

Case Brief

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Parties

Joseph Mowlem

Appellant

Scott William Chisholm

Respondent

Procedural Posture

Civil Appeal / Judgment on Appeal and Cross Appeal

Legal Issues

  1. 1 Whether the appellant was denied procedural fairness by being found negligent on a ground not pleaded or litigated at trial
  2. 2 Whether the assessment of damages for future attendant care was correct
  3. 3 Whether the trial judge erred in finding the appellant negligent for driving too close to parked vehicles

Ratio Decidendi

The appeal on liability was upheld because findings of negligence were based on a ground not pleaded or litigated, amounting to procedural unfairness. There will be a new trial limited to the allegation that the appellant drove too close to parked vehicles. The assessment of damages stands at $2,086,740 in the event of liability being established.

Court Disposition

Appeal upheld; cross-appeal dismissed; new trial on limited liability issue; damages pre-set in event of liability ($2,086,740); costs orders as specified.

Orders

  • Appeal upheld, verdict and judgment for plaintiff set aside.
  • New trial on liability limited to whether appellant was negligent in driving too close to a parked line of vehicles.