Antonijevic v Malhi

[2021] ACTMC 9

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Antonijevic v Malhi

Citation:

[2021] ACTMC 9

Hearing Date(s):

23, 24, 25, 26 November 2020; 14 January 2021; 10, 11 June 2021

DecisionDate:

30 June 2021

Before:

Magistrate Theakston

Decision:

See [50]

Catchwords:

CIVIL LAW – damages for personal injuries – damages for negligence – pre-existing condition – whether injuries are attributed to the incident – whether the incident exacerbated pre-existing conditions

Cases Cited:

Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161

Lumley v Sainsbury [2017] ACTSC 40

Malec v J C Hutton Pty Ltd [1990] HCA 201; (1990) 169 CLR 63

Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164

Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; (2005) 3 DDCR 1

Parties:

Bora Antonijevic (Plaintiff)

Jagiwan Malhi (1st Defendant)

Insurance Australia Group Limited trading as NRMA Insurance Limited (2nd Defendant)

Representation:

Counsel

A Richards (Plaintiff)

J Pappas (1st and 2nd Defendant)

Solicitors

Prail Lawyers (Plaintiff)

Sparke Helmore (1st and 2nd Defendant)

File Number(s):

CS 416 of 2016

MAGISTRATE THEAKSTON:

Introduction

1. The plaintiff claims damages due to negligence from a taxi driver and his insurer, arising from a fall by the plaintiff when alighting from a taxi.  The plaintiff claims the driver moved the taxi forward before the plaintiff had safely exited the vehicle.  That movement of the taxi is said to have constituted negligence and caused the fall.  It was agreed that injuries resulted from the fall.  The defendants say the taxi did not move and there was consequently no negligence.  In the alternative, the defendants alleged contributory negligence. During the hearing the defendants also challenged elements of the damages claimed.

1. Accordingly, a key issue is whether or not the first defendant moved the taxi while the plaintiff was attempting to alight.   

1. This matter was originally heard before Magistrate Morrison, with judgment being entered for the plaintiff.  However, on appeal it was agreed that there was a material error in the transcript, of some significance, which was decisive to the outcome.  The matter was remitted back to this court for re-hearing and subsequently heard by me.  Ultimately, I have strong reservations about the evidence of the plaintiff.  In contrast I comfortably accept the evidence of the defendant.  Further, the evidence of a third witness was that the taxi did not move.  I will order judgment be entered for the defendant.

1. I will address the following topics:

(a)the unchallenged facts;

(b)the evidence of the plaintiff;

(c)the evidence of the first defendant;

(d)the evidence of Mr Sefa;

(e)whether negligence is established, including whether the taxi moved; and

(f)causation and damages.

Unchallenged facts

1. On the afternoon of 4 November 2014, the plaintiff and his former neighbour, Mr Sefa, were drinking at Mr Sefa’s home in Ainslie.  Sometime after 4:00 pm, the two men decided to travel from Ainslie to the Labour Club in Canberra City.  It was Melbourne Cup Day.  They hailed a taxi driven by the first defendant.  The first defendant was insured by…