Antonijevic v Malhi

[2019] ACTMC 15

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Antonijevic v Malhi

Citation:

[2019] ACTMC 15

Hearing Dates:

1 March 2017, 3 – 4 April 2018

DecisionDate:

1 May 2019

Before:

Magistrate Morrison

Decision:

See paragraph [78]

Catchwords:

CIVIL LAW – Damages for personal injuries – pre-existing condition – consequences which may have flowed from worsening of pre-existing condition if accident had not occurred – lack of evidence about those possible consequences – inability to reach conclusion about degeneration of pre-existing condition

Legislation Cited:

Road Transport (Alcohol and Drugs) Act 1997 (ACT)

Cases Cited:

Griffiths v Kerkemeyer (1977) 139 CLR 161
Lumley v Sainsbury [2017] ACTSC 40
Purkess v Crittenden (1965) 114 CLR 164
Seltsam Pty Limited v Ghaleb [2005] NSWCA 208

Parties:

Bora Antonijevic (Plaintiff)

Jagiwan Malhi (First Defendant)
Insurance Australia Group Ltd t/as NRMA Insurance Ltd (Second Defendant)

Representation:

Counsel
Mr D Richards (Plaintiff)
Mr J Pappas (First and Second Defendants)

Solicitors
Canberra Lawyers (Plaintiff)
Sparke Helmore Lawyers (First and Second Defendants)

File Number:

CS 416 of 2016

MAGISTRATE MORRISON:

1. The Plaintiff claims damages for personal injuries arising out of an incident when he fell from a taxi in Bunda Street, Canberra City on 4 November 2014.  The first Defendant, Mr Jagiwan Malhi, was the driver of the taxi.  The second Defendant is the insurer.  The Plaintiff says that the taxi moved as he was alighting from it, causing him to fall.   He pleads that, by causing the taxi to move, the first Defendant breached his duty of care to the Plaintiff, and that the Plaintiff was injured as a result of the fall.  For their part, the Defendants say that there was no breach of duty because the taxi was stationery when the Plaintiff fell from it and, in any event, that the Plaintiff has exaggerated his injuries and their consequences.

1. Part of the contest at hearing was whether and, if so, to what extent, the Plaintiff was affected by alcohol. A conclusion that the Plaintiff was affected by alcohol does not of itself mean that the first Defendant did not breach his duty of care to the Plaintiff, but it would provide an explanation for what the first Defendant says took place – that is, that the Plaintiff simply fell from taxi.

2. In the Plaintiff’s case, testimony was given by the Plaintiff and by a Mr Samual Sefa.  Mr Sefa is a friend of the Plaintiff and was also a passenger in the taxi.

3. The first Defendant gave evidence in the defence case.

   The evidence of the Plaintiff

4. The Plaintiff said that he had travelled to the home of Mr Sefa in Ainslie on the day of the incident.   He and Mr Sefa had been neighbours before the Plaintiff changed address.  The Plaintiff said that he was intending to collect mail.  He went on to say that he consumed two beers while at Mr Sefa’s residence.

5. The Plaintiff described how he and Mr Sefa had hailed a taxi to take them to Civic.  He went…