Benning v Richardson - [2021] ACTSC 34

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Benning v Richardson

Citation:

[2021] ACTSC 34

Hearing Dates:

1 – 5 March 2021

Decision Date:

11 March 2021

Before:

Elkaim J

Decision:

(i)	Judgment for the plaintiff in the sum of $297,979.30.
(ii)	The defendant is to pay the plaintiff’s costs of the

proceedings.
(iii) I will hear the parties if any different costs orders are sought.

Catchwords:	CIVIL LAW – NEGLIGENCE – Motor Vehicle Accident – Contributory negligence – whether the plaintiff took hold of steering wheel – whether the plaintiff was wearing a seatbelt – entering a vehicle with an intoxicated driver – damages
Legislation Cited:	Civil Law (Wrongs) Act 2002 (ACT) Pt 7.1
Cases Cited:	Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Hewlett-Packard v Subasic [2012] ACTCA 3 Joslyn v Berryman [2003] HCA 34; 214 CLR 552
Mason v Demasi [2009] NSWCA 227
Parties:	Dannielle Benning (Plaintiff) Jamie Richardson (First Defendant)
Insurance Australia Limited Trading as NRMA Insurance (ACN: 000 016 722) (Second Defendant)
Representation:	Counsel
A Muller (Plaintiff) J Pappas (Defendants)
Solicitors
Maliganis Edwards Johnson (Plaintiff) HWL Ebsworth Lawyers (Defendants)
File Number:	SC 196 of 2018
ELKAIM J:

1.       The plaintiff was injured in a motor vehicle accident on 1 February 2014. She was an intoxicated passenger in a vehicle driven by an intoxicated driver (the first defendant). The second defendant is the third-party insurer.
2.       The plaintiff says that the accident was caused by the negligence of the first defendant and she seeks damages as a result of that negligence. The damages are claimed under the following heads: general damages, past and future economic loss, past and future medical expenses and past and future domestic assistance.
3.       The effect of the pleadings is that the first defendant admits a breach of duty of care owed to the plaintiff by driving while intoxicated. He then says, primarily, that the breach
did not cause her injuries because the accident was the result of the plaintiff “taking
hold of the Mazda’s steering wheel and turning it sharply to the left” so that the motor
car veered off the road into a tree (paragraph 3 of the Amended Defence). Secondly, if the first defendant is wrong on its primary submission, his case is that there should be a substantial finding of contributory negligence because the plaintiff voluntarily departed in the vehicle when she knew or ought reasonably to have known that the driver was intoxicated. In addition, she was not wearing a seatbelt.
4. The latter assertions, if established, give rise to the presumptions of contributory negligence required by Part 7.1 of the Civil Law (Wrongs) Act 2002 (ACT).
5.       The defendants acknowledged that they bore the onus of establishing that the plaintiff interfered with the steering of the vehicle.
6.       An important piece of background to this case is that the first defendant was charged with the offences of culpable driving causing death and separately causing grievous bodily harm. The latter offence related specifically to…

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 Benning v Richardson

Details

AGLC: Benning v Richardson [2021] ACTSC 34
Case: [2021] ACTSC 34
Decision Date

CaseChat Overview and Summary

The case of Benning v Richardson was heard by Elkaim J in the Supreme Court of the Australian Capital Territory. The plaintiff, Dannielle Benning, claimed damages arising from a motor vehicle accident on 1 February 2014, in which she was a passenger in a vehicle driven by Jamie Richardson, who was intoxicated. The second defendant, Insurance Australia Limited Trading as NRMA Insurance, was the third-party insurer. The plaintiff sought damages for general damages, past and future economic loss, past and future medical expenses, and past and future domestic assistance. The first defendant admitted to a breach of duty of care by driving while intoxicated but argued that the accident was caused by the plaintiff interfering with the steering of the vehicle and that there should be a finding of contributory negligence due to her voluntary departure with an intoxicated driver and failure to wear a seatbelt.

The court rejected the first defendant's evidence about the plaintiff interfering with the steering of the vehicle, finding that his evidence was not credible. The court also found that the plaintiff was not wearing a seatbelt at the time of the accident, which contributed to her injuries. Furthermore, the court held that the plaintiff was contributory negligent for voluntarily entering a vehicle with an intoxicated driver and not wearing a seatbelt. The court determined that the appropriate percentage of contributory negligence was 35%.

In assessing the damages, the court awarded general damages of $160,000, interest on general damages of $8,000, past medical expenses of $51,964.75, interest on unpaid past medical expenses of $206, future medical expenses of $28,000, past economic loss of $25,000, past lost superannuation benefits of $3,750, interest on past economic loss of $3,750, future economic loss of $31,517.26, future lost superannuation benefits of $5,357.93, past domestic assistance of $53,235, and future domestic assistance of $87,648.75. The total damages awarded were $458,429.69, reduced by 35% for contributory negligence, resulting in a final award of $297,979.30.

The court made the following orders: (i) judgment for the plaintiff in the sum of $297,979.30, (ii) the defendant to pay the plaintiff's costs of the proceedings, and (iii) the court would hear the parties if any different costs orders were sought.

Orders