Aitkenhead v Kaufline (No 3) - [2014] ACTSC 83

AITKENHEAD v KAUFLINE (NO 3)

[2014] ACTSC 83

TORTS – Contributory negligence – collision between two vehicles at the crest of a country road – where plaintiff was negligent in approaching the crest in the centre of the road – whether the plaintiff’s negligence was a cause of the accident – burden rests on the defendant to demonstrate how the plaintiff’s contributory negligence made a difference to the injury suffered – the plaintiff’s negligence did not increase the likelihood of the accident or increase the severity of the damage.

Civil Law (Wrongs) Act 2002 (ACT) s 102
Road Transport (Third-Party Insurance) Act 2008 (ACT) s 151(4)

Froom v Butcher [1976] QB 286

Hannan v MacLean (1989) 9 MVR 219
Hoare v Rudd (1989) 9 MVR 229

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638

SC 275 of 2012

Judge: Master Mossop
Supreme Court of the ACT

Date: 9 May 2014

IN THE SUPREME COURT OF THE     )
  )          No. SC 275 of 2012
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:JONATHON AITKENHEAD
Plaintiff

AND:EVAN KAUFLINE and INSURANCE AUSTRALIA LTD trading as NRMA INSURANCE
Defendant

ORDER

Judge:  Master Mossop
Date:  9 May 2014
Place:  Canberra

THE COURT ORDERS THAT:

1. Judgment be entered against Insurance Australia Ltd in the sum of $722,687.

2. Insurance Australia Ltd is to pay the plaintiff’s costs of the proceedings.

3. Order 2 does not take effect if a party notifies my associate by email within 7 days of the date of this order that it wishes to be heard in relation to costs.

Claim

By originating claim dated 3 September 2012 the plaintiff has claimed damages for personal injury arising out of a motor vehicle accident. That accident occurred on 14 September 2009 on Woods Lane in the Australian Capital Territory. The plaintiff alleges that he suffered injuries to his back, neck and right knee. The claim in relation to his right knee was not pursued at trial.

The defendant has admitted that he breached his duty of care but does not admit the precise allegations of negligence made against him. The defendant alleges that the plaintiff was guilty of contributory negligence in that he was driving at excessive speed, did not keep his vehicle wholly or substantially on the left-hand side of the road when approaching the scene of the collision, failed to take of evasive action, failed to take care of for his own safety and failed to keep any proper lookout.

The accident

Woods Lane is a graded dirt road which runs from HMAS Harman through to Lanyon Drive. In 2009 it was in reasonable condition. It runs parallel to and immediately to the west of the railway line which forms the border between the Australian Capital Territory and New South Wales.

The accident occurred near the crest of a hill. Both the northern and southern approach to the accident site along the road had an uphill gradient. On either side of the crest the uphill gradient was approximately 8% although…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] ACTSC 83
Decision Date: May 9, 2014

CaseChat Overview and Summary

In Aitkenhead v Kaufline, the plaintiff, Aitkenhead, sought damages for injuries sustained in a motor vehicle accident that occurred on Woods Lane in the Australian Capital Territory. Aitkenhead alleged that the accident, which took place on 14 September 2009, resulted in injuries to his back, neck, and right knee. The defendant, Kaufline, admitted to breaching his duty of care but disputed the plaintiff's allegations of negligence. Instead, Kaufline argued that the plaintiff was contributory negligent in various respects, including driving at excessive speed, not adhering to the left-hand side of the road, failing to take evasive action, neglecting his own safety, and not maintaining a proper lookout.

The primary legal issue before the court was whether the plaintiff's contributory negligence contributed to the accident and the resultant injuries. The court was tasked with determining whether Aitkenhead's actions increased the likelihood of the accident occurring or exacerbated the severity of his injuries. The burden of proof rested on Kaufline to demonstrate that the plaintiff's negligence played a causal role in the accident and the injuries sustained. The court had to assess whether Aitkenhead's actions, specifically his position in the centre of the road at the crest, contributed to the collision and subsequent injuries.

The court found that Aitkenhead's actions did not increase the likelihood of the accident or the severity of the injuries. It concluded that the plaintiff's contributory negligence did not make a difference to the injury suffered. Consequently, the court determined that the plaintiff was not liable for contributory negligence, and the defendant remained responsible for the full extent of the damages. The court's reasoning hinged on the lack of evidence that Aitkenhead's positioning or actions at the crest of the road influenced the collision or the harm caused.

The final orders of the court were that the defendant was liable for the full extent of the damages claimed by the plaintiff. Aitkenhead was awarded compensation for his injuries to his back and neck, with the defendant's contributory negligence not mitigating the plaintiff's entitlement to damages.

Orders

Orders of the court

1. By originating claim dated 3 September 2012 the plaintiff has claimed damages for personal injury arising out of a motor vehicle accident. That accident occurred on 14 September 2009 on Woods Lane in the Australian Capital Territory. The plaintiff alleges that he suffered injuries to his back, neck and right knee. The claim in relation to his right knee was not pursued at trial.

The defendant has admitted that he breached his duty of care but does not admit the precise allegations of negligence made against him. The defendant alleges that the plaintiff was guilty of contributory negligence in that he was driving at excessive speed, did not keep his vehicle wholly or substantially on the left-hand side of the road when approaching the scene of the collision, failed to take of evasive action, failed to take care of for his own safety and failed to keep any proper lookout.

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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