Baramilis v Lucarelli

[2008] QMC 4

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Baramilis v Lucarelli & Anor [2008] QMC 004

PARTIES:

CAROLYN ANNE BARAMILIS

(plaintiff)

v

MARIA KATHLENA LUCARELLI

(first defendant)

ZACHARIAH LUDWICK

(second defendant)

FILE NO/S:

M667/06

DIVISION:

Magistrates Courts

PROCEEDING:

Claim

ORIGINATING COURT:

Magistrates Court at Southport

DELIVERED ON:

15 February 2008

DELIVERED AT:

Brisbane

HEARING DATE:

19 October 2007

MAGISTRATE:

Lee G

ORDER:

Judgement for the plaintiff against the first defendant.

Judgement for the second defendant against the plaintiff.

Judgement for the second defendant against the first defendant in the third party proceedings.

CATCHWORDS:

TORTS - NEGLIGENCE – vicarious liability – property damage claim - whether owner of motor vehicle vicariously liable for negligence of driver – social context - whether use of motor vehicle for owner’s purpose

Soblusky v. Egan (1960) 103 CLR 215

COUNSEL:

SOLICITORS:

1. On 13^th May 2005 at about 8.45 a.m. a motor vehicle accident occurred involving a Chrysler Grand Voyager owned and driven by Ms Carolyn Anne Baramilis (the plaintiff), a Holden Commodore driven by Ms Maria Kathlena Lucarelli (first defendant) and owned by Mr Zachariah Ludwick (the second defendant), and a third motor vehicle.  The accident occurred within the jurisdiction of this court - Napper Road, Parkwood.   

2. The plaintiff claims damages against the first defendant driver as principal tortfeasor and against the second defendant on the basis that he is vicariously liable for the negligent acts of the first defendant according to the principles set out in the High Court case of Soblusky v. Egan (1960) 103 C.L.R. 215. The driver or owner of the third motor vehicle is not a party in this action.

3. The damages claimed by the plaintiff total $17,991.67 comprising $17,048.43 for damage to the plaintiff’s vehicle and $943.24 for the plaintiff’s cost of hiring a replacement vehicle[1].  The plaintiff’s vehicle was uneconomical to repair[2]. In addition, interest is claimed at the statutory rate pursuant to section 47 of the Supreme Court Act 1995.  At trial the second defendant admitted the quantum of the plaintiff’s claim as against him (page 8 line 10 transcript[3]).           

   [1] Further Amended Statement of Claim filed 27 February 2007 at paragraphs 3(d), 3A & 11(a);

   [2] Ibid; paragraphs 3(c) & 9;

   [3] Future page and line references are to the transcript; 

4. In addition to filing his original defence on 23 May 2006 the second defendant commenced third party proceedings against the first defendant claiming $27,518.22 damages for the second defendant’s Holden Commodore which was damaged beyond economical repair[4].  In addition, the second defendant claims an indemnity or contribution from the first defendant in the event that the second defendant is found liable to the plaintiff in the principal cause of action.       

   [4] Third Party Notice filed 23 May 2006 at paragraph 6;

5. The first defendant has failed to file a defence to the plaintiff’s claim against her.  She has also failed to file a defence to the second defendant’s third party proceedings against her.  The first defendant appeared at trial and, apart from intending to give evidence…