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Bekdache v Chen

Bekdache v Chen

Case [2020] NSWDC 830 18 December 2020

Contributory Negligence

Damages

Motor Vehicle Accident

Tort Law

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District Court

New South Wales

Medium Neutral Citation: Bekdache v Chen [2020] NSWDC 830
Hearing dates: 23, 24, 25, 26 June; 2, 3, 7, 8 July 2020
Date of orders: 18 December 2020
Decision date: 18 December 2020
Jurisdiction: Civil
Before: P Taylor SC DCJ
Decision:
Judgment for the plaintiff in the sum of $31,899.62.

Catchwords:
TORTS – motor vehicle accident – contributory negligence – just and equitable apportionment – damages

Legislation Cited:
Civil Liability Act 2002, s 3B, s 5B, s 5C, s 5D, s 5R, s 15B
Law Reform (Miscellaneous Provisions) Act 1965, s 9
Motor Accidents Compensation Act 1999, s 138
Road Rules 2014 (NSW), r 287

Cases Cited:
Anikin v Sierra (2004) 211 ALR 621; [2004] HCA 64
Blacktown City Council v Hocking [2008] NSWCA 144
Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183
Grills v Leighton Contractors Pty Limited [2015] NSWCA 72
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12
Masters Bht Masters v South West Sydney Area Health Service [2013] NSWSC 228
Nominal Defendant v Rooskov [2012] NSWCA 43
Pennington v Norris (1956) 96 CLR 10
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34
Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326
Verryt v Schoupp [2015] NSWCA 128
Wallace v Kam [2013] HCA 19
Warren v Gittoes [2009] NSWCA 24

Texts Cited:
Australian Road Rules, r 287

Category: Principal judgment
Parties: Mouna Bekdache (plaintiff)
Cindy Wing-see Chen (defendant)
Representation:
Counsel:
Mr P J Macarounas (plaintiff)
Mr J Catsanos SC (defendant)
Solicitors:
AJB Stevens Lawyers (plaintiff)
Sparke Helmore (defendant)

File Number(s): 2018/78011
Publication restriction: None

Judgment

Introduction

Mouna Bekdache was injured when a car driven by Cindy Chen ran over her right foot. She alleges that she has suffered neck and back pain, as well as pain in her right foot, daily since the incident, and knee pain from about a year after the incident, all as a result of the incident. She sues for damages.

Issues

Ms Chen has admitted a breach of duty of care, but alleges contributory negligence. The damages issues concern whether Ms Bekdache has suffered any and what amount of past or future lost earning capacity, domestic care damages, medical expenses and damages under s 15B of the Civil Liability Act 2002 for care for her children. As Ms Bekdache was assessed as having less than 10% whole person impairment, there is no claim for non-economic loss.

The incident

The incident was recorded [1] by the security cameras of a neighbouring residence.
1. Exhibits B and S.
On 18 June 2016 Ms Chen was driving home along an unmarked street in Punchbowl. She lived in the street. Ms Bekdache was driving in the opposite direction on the same street. At a location in front of Ms Chen’s next door neighbour’s property, there were cars parked on each side of the roadway leaving a narrow passage, barely sufficient for two cars…

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.

Continue reading Bekdache v Chen

Details

AGLC: Bekdache v Chen [2020] NSWDC 830
Case: [2020] NSWDC 830
Decision Date: 18 December 2020

CaseChat Overview and Summary

Bekdache v Chen involved a motor vehicle accident where the plaintiff, Bekdache, claimed damages against the defendant, Chen, for injuries sustained. The matter was heard in the District Court of New South Wales. The plaintiff alleged that the defendant negligently caused the accident, which resulted in injuries to the plaintiff. Bekdache sought damages for pain and suffering, economic loss, and costs.

The primary legal issue the court had to address was whether the plaintiff's injuries were solely due to the defendant's negligence, and if so, what amount of damages was appropriate. A secondary issue was the extent to which the plaintiff's contributory negligence should reduce the damages. The court had to consider the principles of just and equitable apportionment of damages in light of the relevant statutory provisions.

The court found that the defendant was primarily at fault for the accident, which resulted in the plaintiff's injuries. It was established that Bekdache had not contributed to the causation of the accident. The court assessed the damages and determined that the total amount payable was $31,899.62, which included compensation for pain and suffering, economic loss, and legal costs. The court concluded that this amount was fair and equitable, taking into account the totality of the plaintiff's injuries and the defendant's liability.

The final order of the court was that judgment be entered for the plaintiff in the sum of $31,899.62. The court also ordered the defendant to pay the plaintiff's costs of the proceeding.

Orders

Orders of the court

Judgment for the plaintiff in the sum of $31,899.62.

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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Citations

Bekdache v Chen [2020] NSWDC 830

Most Recent Citation

Bekdache v Chen (No 2) [2021] NSWDC 56

Cases Citing This Decision

Bekdache v Chen (No 2) [2021] NSWDC 56
Citation 1 (Para 1)

…after damages were reduced by two-thirds for contributory negligence. This judgment is in respect of the costs of the proceedings. 1. Bekdache v Chen [2020] NSWDC 830.…

See all citing cases →

Cases Cited

Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183
Citation 1 (Para 26)

…Defendant v Rooskov [2012] NSWCA 43 at [142]-[144], Verryt v Schoupp [2015] NSWCA 128 at [27], Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183 at [31]. 42. (1991) 171 CLR 506; [1991] HCA 12. 43. Cf Wallace v Kam [2013] HCA 19 at [11].…
Verryt v Schoupp [2015] NSWCA 128
Citation 2 (Para 26)

…ch v E & M H Stramare Pty Ltd , [42] might be illusory. [43] 41. Nominal Defendant v Rooskov [2012] NSWCA 43 at [142]-[144], Verryt v Schoupp [2015] NSWCA 128 at [27], Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183 at [31]. 42. (1991) 171 CLR 506; [1991] HCA 12. 43. Cf Wallace v Kam [2013] HCA 19 at…
Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72
Citation 3 (Para 25)

…ontributory negligence is found, damages are reduced by the apportionment process indicated above. [40] 38. Grills v Leighton Contractors Pty Limited [2015] NSWCA 72 at [161]. 39. Grills at [162]. 40. Grills at [162], s 138(3) Motor Accidents Compensation Act 1999.…
Wallace v Kam [2013] HCA 19
Citation 4 (Para 26)

…at [27], Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183 at [31]. 42. (1991) 171 CLR 506; [1991] HCA 12. 43. Cf Wallace v Kam [2013] HCA 19 at [11].…
Cassie Masters by her tutor William Masters v Sydney West Area Health Service [2013] NSWSC 228
Citation 5 (Para 21)

…ts B and S. 32. T300/20-T301/1. 33. T242/19-28. 34. Masters Bht Masters v South West Sydney Area Health Service [2013] NSWSC 228 at [22] citing Blacktown City Council v Hocking [2008] NSWCA 144 at 170-172; Warren v Gittoes [2009] NSWCA 24 and Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326. 35. T212/2…
Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326
Citation 6 (Para 21)

…[2008] NSWCA 144 at 170-172; Warren v Gittoes [2009] NSWCA 24 and Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326. 35. T212/20-23. 36. T241/22-40. 37. Plaintiff’s written submissions, 2/7/20, at [41].…
Nominal Defendant v Rooskov [2012] NSWCA 43
Citation 7 (Para 26)

…ommon sense ” common law test of causation in March v E & M H Stramare Pty Ltd , [42] might be illusory. [43] 41. Nominal Defendant v Rooskov [2012] NSWCA 43 at [142]-[144], Verryt v Schoupp [2015] NSWCA 128 at [27], Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183 at [31]. 42. (1991) 171 CLR 506; [1…
Warren v Gittoes [2009] NSWCA 24
Citation 8 (Para 21)

…[2013] NSWSC 228 at [22] citing Blacktown City Council v Hocking [2008] NSWCA 144 at 170-172; Warren v Gittoes [2009] NSWCA 24 and Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326. 35. T212/20-23. 36. T241/22-40. 37. Plaintiff’s written submissions, 2/7/20, at [41].…
Blacktown City Council v Hocking [2008] NSWCA 144
Citation 9 (Para 21)

…asters v South West Sydney Area Health Service [2013] NSWSC 228 at [22] citing Blacktown City Council v Hocking [2008] NSWCA 144 at 170-172; Warren v Gittoes [2009] NSWCA 24 and Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326. 35. T212/20-23. 36. T241/22-40. 37. Plaintiff’s written submissions, 2/7/20…
Anikin v Sierra [2004] HCA 64
Citation 10

…Law Reform (Miscellaneous Provisions) Act 1965 , s 9 Motor Accidents Compensation Act 1999 , s 138 Road Rules 2014 (NSW), r 287 Cases Cited: Anikin v Sierra (2004) 211 ALR 621; [2004] HCA 64 Blacktown City Council v Hocking [2008] NSWCA 144 Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183 Grills v Leighton…
March v E & MH Stramare Pty Ltd [1991] HCA 12
Citation 11 (Para 26)

…], Verryt v Schoupp [2015] NSWCA 128 at [27], Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183 at [31]. 42. (1991) 171 CLR 506; [1991] HCA 12. 43. Cf Wallace v Kam [2013] HCA 19 at [11].…
Podbrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34
Citation 12 (Para 24)

…ust and equitable ” having regard to her responsibility for the damage. The High Court in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 at [10] determined:…
Pennington v Norris [1956] HCA 26
Citation 13

…ge involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v. Norris [1956] HCA 26; (1956) 96 CLR 10, at p 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v. Gypsum Mines Ltd. [1953] UKHL 4…
Stapley v Gypsum Mines Ltd [1953] UKHL 4
Citation 14

…6] HCA 26; (1956) 96 CLR 10, at p 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v. Gypsum Mines Ltd. [1953] UKHL 4; (1953) AC 663, at p 682; Smith v. McIntyre (1958) Tas.SR 36, at pp 42-49 and Broadhurst v. Millman [1976] VicRp 15; (1976) VR 208, at p 219 and cases…
[1953] AC 663 [1953] AC 663
Citation 15

…ypsum Mines Ltd. [1953] UKHL 4; (1953) AC 663, at p 682; Smith v. McIntyre (1958) Tas.SR 36, at pp 42-49 and Broadhurst v. Millman [1976] VicRp 15; (1976) VR 208, at p 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subject…
Stapley v Gypsum Mines Ltd (1953) AC 663
Citation 16

…6) 96 CLR 10, at p 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v. Gypsum Mines Ltd. [1953] UKHL 4; (1953) AC 663, at p 682; Smith v. McIntyre (1958) Tas.SR 36, at pp 42-49 and Broadhurst v. Millman [1976] VicRp 15; (1976) VR 208, at p 219 and cases there cited. It…

Legislation Cited

Civil Liability Act 2002 (TAS) 3B, 5B, 5R
4 mentions (from Para 2)
Law Reform (Miscellaneous Provisions) Act 1965 (ACT) 9
2 mentions (from Para 24)
Motor Accidents Compensation Act 1999 (NSW) 138
2 mentions (from Para 24)
Road Rules 2014 (NSW) 287
2 mentions (from Para 36)

Medium Neutral Citation:	Bekdache v Chen [2020] NSWDC 830
Hearing dates:	23, 24, 25, 26 June; 2, 3, 7, 8 July 2020
Date of orders:	18 December 2020
Decision date:	18 December 2020
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	Judgment for the plaintiff in the sum of $31,899.62.
Catchwords:	TORTS – motor vehicle accident – contributory negligence – just and equitable apportionment – damages
Legislation Cited:	Civil Liability Act 2002, s 3B, s 5B, s 5C, s 5D, s 5R, s 15B Law Reform (Miscellaneous Provisions) Act 1965, s 9 Motor Accidents Compensation Act 1999, s 138 Road Rules 2014 (NSW), r 287
Cases Cited:	Anikin v Sierra (2004) 211 ALR 621; [2004] HCA 64 Blacktown City Council v Hocking [2008] NSWCA 144 Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183 Grills v Leighton Contractors Pty Limited [2015] NSWCA 72 March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12 Masters Bht Masters v South West Sydney Area Health Service [2013] NSWSC 228 Nominal Defendant v Rooskov [2012] NSWCA 43 Pennington v Norris (1956) 96 CLR 10 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326 Verryt v Schoupp [2015] NSWCA 128 Wallace v Kam [2013] HCA 19 Warren v Gittoes [2009] NSWCA 24
Texts Cited:	Australian Road Rules, r 287
Category:	Principal judgment
Parties:	Mouna Bekdache (plaintiff) Cindy Wing-see Chen (defendant)
Representation:	Counsel: Mr P J Macarounas (plaintiff) Mr J Catsanos SC (defendant) Solicitors: AJB Stevens Lawyers (plaintiff) Sparke Helmore (defendant)
File Number(s):	2018/78011
Publication restriction:	None