Booth v Erdhal

[2022] ACTSC 200

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Booth v Erdhal

Citation:

[2022] ACTSC 200

Hearing Dates:

27 July, 5 August 2022

DecisionDate:

9 August 2022

Before:

Elkaim J

Decision:

(i)     Verdict and judgment for the plaintiff in the amount agreed by the parties.

(ii)    The defendants are to pay the plaintiff’s costs of the proceedings.

(iii)    I will hear the parties if any other costs order is sought.

Catchwords:

CIVIL LAW – NEGLIGENCE – Personal injury – motor vehicle accident – where parties dispute liability – competing versions from drivers – competing experts for each side – where parties do not dispute quantum of damages – judgment for the plaintiff  

Legislation Cited:

Civil Law (Wrongs) Act 2002 (ACT) pt 4.2, 4.3

Cases Cited:

Yebdoo v Holmewood [2021] NSWCA 119

Young v Cesta-Incani & Anor [2007] NSWCA 229

Parties:

Matthew Booth ( Plaintiff)

Benjamin Michael Erdhal ( First Defendant)

AAI Limited t/as GIO Insurance (Second Defendant)

Representation:

Counsel

D Richards ( Plaintiff)

S Onitiri (First and Second Defendants)

Solicitors

Maliganis Edwards Johnson ( Plaintiff)

MinterEllison ( First and Second Defendant)

File Number:

SC 126 of 2021

Elkaim J:

1. On 3 July 2019 the plaintiff was involved in a motor vehicle accident on Newcastle Street in Fyshwick in the ACT. The accident was between the plaintiff’s vehicle, a silver Holden Captiva and another Holden (a black station wagon). The station wagon was driven by the first defendant. The second defendant is his third-party insurer.

1. The plaintiff was injured in the accident. He says that his injuries were caused by the negligence of the first defendant. The plaintiff seeks damages arising from his injuries.

1. The quantum of the damages has been agreed between the parties, leaving liability as the issue to be decided by the Court.

1. The defendants admit that the accident occurred, but say that it was caused by the negligence of the plaintiff, at least wholly but otherwise, partially (contributory negligence).

1. The applicable laws on whether there has been a breach of a duty of care, and on the necessary causation, are contained in Part 4.2 and Part 4.3 respectively of the Civil Law (Wrongs) Act 2002 (ACT). However, in this particular matter, it was common ground that a finding of negligence would follow depending on which version I accepted. Both parties maintained a submission of negligence (by the first defendant on his version) or contributory negligence (by the plaintiff on his version) if the opposing party’s case was accepted.

1. In simple terms the plaintiff says that he was travelling along Newcastle Street in the left lane. He indicated to the right and moved into the right lane. He was intending to make a right-hand turn into commercial premises on the other side of the road. He says that the first defendant tried to overtake him on his right and drove into the driver’s side of his vehicle.

1. Based on the Defence, the first defendant says that the plaintiff did not indicate and simply attempted to make a…