Anthony Glohe v Nicholas Simington (No 3)

District Court

New South Wales

Medium Neutral Citation:	Anthony Glohe v Nicholas Simington (No 3) [2016] NSWDC 155
Hearing dates:	23 – 27 November 2015; 30 – 31 May 2016; 1, 7 June 2016
Date of orders:	12 July 2016
Decision date:	12 July 2016
Jurisdiction:	Civil
Before:	Cogswell SC DCJ
Decision:	I enter a verdict for the plaintiff against the defendant in the sum of $37,104.
Catchwords:	TORTS - negligence - road accident cases – road rage incident – liability of drivers of vehicles –pedestrian accidents – negligent if not reckless swerve towards pedestrian – altercation between passenger and driver of other vehicle – assessment of credibility – relevance of incomplete cross-examination of defendant due to defendant’s medical condition – not a blameless accident – finding of no contributory negligence; DAMAGES – past-economic loss – limited work capacity  for 12 weeks post-accident – future economic loss – reliance on Malec v Hutton principles – finding that plaintiff has ongoing and permanent loss in earning capacity – plaintiff is fulltime carer for wife – absence of medical evidence regarding the plaintiff’s wife’s life expectancy – award of buffer amount – past domestic care – failure to overcome statutory threshold – no award – future domestic care awarded – future out-of-pocket expenses awarded
Legislation Cited:	Motor Accidents Compensation Act 1999
Cases Cited:	Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Seven Network Ltd v News Ltd (No 8) [2005] FCA 1348
Category:	Principal judgment
Parties:	Anthony Glohe (Plaintiff) Nicholas Simington (Defendant)
Representation:	Counsel: Mr D Toomey SC with Mr D Woodbury (Plaintiff) Mr P Ryan (Defendant)   Solicitors: Toby Tancred Solicitor (Plaintiff) Moray & Agnew (Newcastle) (Defendant)
File Number(s):	2014/239297
Publication restriction:	None

Judgment

Introduction

1. This is a case about a road rage incident that occurred between two cars in suburban Orange. It happened on the evening of Saturday 7 September 2013. The incident led to a collision between one of the cars and the passenger in the other car. The passenger had gotten out of his car to remonstrate with the other driver. He was standing on the roadway when he was hit and injured by the other car. The passenger says it was the other driver's fault and has sued him for damages.

2. The passenger's name is Anthony Glohe. He is the plaintiff and was represented by Mr Dominic Toomey SC and Mr Dean Woodbury of counsel. The other driver is Mr Nicholas Simington. He was represented by Mr Peter Ryan of counsel.

3. Mr Toomey SC argues that his client can be successful on one or more of three bases. First, he says Mr Simington was driving negligently and hit Mr Glohe; secondly, he says Mr Simington deliberately drove into Mr Glohe; thirdly, he says this was what the legislation calls a blameless motor accident.

4. Mr Ryan argues that Mr Glohe has not made out any of these; but if he has then he is guilty of contributory negligence. Mr Ryan says the contributory negligence of Mr Glohe…