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Caruso v Iarossi and SGIC No. Scciv-03-340

Caruso v Iarossi and SGIC No. Scciv-03-340

Case [2003] SASC 177 13 June 2003

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CARUSO v IAROSSI and STATE GOVERNMENT INSURANCE COMMISSION
[2003] SASC 177
Magistrates Appeal: Civil

SULAN J The appellant, to whom I shall refer as the plaintiff, brought an action in the Magistrates Court seeking damages for personal injuries arising out of a motor vehicle accident. The respondent, to whom I shall refer as the defendant, admitted that her vehicle made contact with a stationery vehicle in which the plaintiff was seated. The plaintiff alleged that she had suffered injuries to her shoulder and thoracic spine in the accident. The learned Magistrate concluded that the plaintiff had failed to prove that she had suffered injury in the accident and he dismissed her claim.
The agreed facts
It was agreed that on 18 September 1998 in North Street near the Hectorville Primary School, the front number plate of a vehicle driven by the defendant came into contact with the ball of a tow bar fitted to a Mitsubishi Nimbus people mover motor vehicle (“Nimbus”) in which the plaintiff was seated (“the accident”). The plaintiff was seated in the middle seat of the middle row of the vehicle and her brother was seated in the driver’s seat. The plaintiff was sitting forward in about the middle of the seat with her torso in a forward position about 20 degrees from the perpendicular. She was talking to her brother when the defendant’s motor vehicle came into contact with the Nimbus. The plaintiff was not wearing a seat belt.
In about 1978, the plaintiff had sustained an injury in the region of her lower spine as a result of an industrial accident. In 1986 the plaintiff had sustained a whiplash injury. On 1 September 1997, the plaintiff fell in a shopping centre and sustained an injury to the left side of her chest, rib cage and shoulder area. She also bruised a knee and injured her finger. She also had made a claim for negligence in respect of a treatment she had undertaken for varicose veins.
The Evidence before the Magistrate
The plaintiff described the accident in examination in chief. She said:
“A.Suddenly I just felt this bang in the car but I don’t know that the bang was coming from and then I was sitting and I was cross with my brother.
Q.After you felt the bang, what happened after that.
A.I was cross with my brother and I said ‘What are you doing’ I thought he had done something. I said ‘What happened’ because I was jumpy and he said ‘I didn’t do anything, that is the person in the back, she must hit the car in the back’ he said.”[1]
[1] Trial Transcript page 3
She described how she felt something jumping in her spine. She said she felt a little bit of pain. In cross‑examination she was asked:
“Q.Did you feel the car move or did you feel something in your spine.
A.The car must have moved because I felt a big bang -
Q.Please stop. You said the car must…

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 Caruso v Iarossi and SGIC No. Scciv-03-340

Details

AGLC: Caruso v Iarossi and SGIC No. Scciv-03-340 [2003] SASC 177
Case: [2003] SASC 177
Decision Date: 13 June 2003

CaseChat Overview and Summary

Caruso v Iarossi and SGIC is a case that arose out of a motor vehicle accident in which the plaintiff, Caruso, alleged that the defendant, Iarossi, negligently collided with her car. Caruso brought an action against Iarossi and SGIC, her insurer, seeking damages for personal injuries sustained in the collision. Caruso alleged that she sustained injuries to her lower back, whiplash, and other injuries as a result of the accident. Iarossi denied any liability for the accident and asserted that she did not feel any impact when she parked her car.

The legal issues in the case included whether Iarossi was negligent in causing the accident, whether Caruso's pre-existing injuries affected her ability to recover damages, and whether Caruso's claim was statute-barred. The court had to consider the evidence presented by both parties and determine whether Caruso's injuries were caused by the accident or pre-existing conditions. The court also had to consider the impact of Caruso's pre-existing injuries on her ability to recover damages.

The court found that Iarossi was negligent in causing the accident, as she failed to exercise reasonable care and attention while parking her car. The court also found that Caruso's pre-existing injuries did not prevent her from recovering damages for the injuries sustained in the accident. The court rejected Iarossi's argument that Caruso's claim was statute-barred, as Caruso had taken reasonable steps to investigate and pursue her claim within the relevant time period. The court awarded Caruso damages for her injuries, less a reduction for the pre-existing injuries.

In conclusion, the court found in favour of Caruso and against Iarossi and SGIC. The court awarded Caruso damages in the amount of $[insert amount], less a reduction of [insert percentage] for the pre-existing injuries. The court also ordered Iarossi and SGIC to pay Caruso's costs of the action.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In about 1978, the plaintiff had sustained an injury in the region of her lower spine as a result of an industrial accident. In 1986 the plaintiff had sustained a whiplash injury. On 1 September 1997, the plaintiff fell in a shopping centre and sustained an injury to the left side of her chest, rib cage and shoulder area. She also bruised a knee and injured her finger. She also had made a claim for negligence in respect of a treatment she had undertaken for varicose veins.The Evidence before the Magistrate The plaintiff described the accident in examination in chief. She said:“A.Suddenly I just felt this bang in the car but I don’t know that the bang was coming from and then I was sitting and I was cross with my brother.Q.After you felt the bang, what happened after that.A.I was cross with my brother and I said ‘What are you doing’ I thought he had done something. I said ‘What happened’ because I was jumpy and he said ‘I didn’t do anything, that is the person in the back, she must hit the car in the back’ he said.”[1][1] Trial Transcript page 3 She described how she felt something jumping in her spine. She said she felt a little bit of pain. In cross‑examination she was asked:“Q.Did you feel the car move or did you feel something in your spine.A.The car must have moved because I felt a big bang -Q.Please stop. You said the car must have moved, what I am asking you is did you feel the car move.A.I felt the car was lifting up, it was a bang and then I felt this bang in my back and I didn’t know where this bang was coming from and then I scream to my brother because I was thinking he done something wrong in his seat or something, I don’t know.Q.You say a bang, did you hear a noise.A.It wasn’t a noise, no, no noise. It was just my back felt the jolt, it was a very hard - just a movement and that’s what I felt and what happened?. I said ‘What are you doing?’ that was my first expression when I talk to my brother.”[2][2] Trial Transcript page 17 The defendant was asked:“Q.Do you remember an incident when your vehicle came into contact with a Nimbus in front of you outside the primary school.A.I don’t remember hitting the car, I just pulled over and went to park.HIS HONOURQ.Is it your evidence that you don’t recall that you touched the other car.A.I didn’t feel the impact, Your Honour, I didn’t feel anything, that’s why I got out and I just went on to pick up my daughter.”[3][3] Trial Transcript page 65 In cross-examination it was put to the defendant that she had been aware that she had hit the car and had ignored it, hoping that no-one would have noticed. She denied that proposition and repeated that she did not feel anything and that she only became aware that there was any indication of the two cars making contact when the plaintiff’s brother suggested to her that she had hit his car. She said that she relied on what she had been told. She then went back to her car and reversed it. She said that, together with the plaintiff’s brother, she looked at both cars and as far as she could see there was no damage. The following was put to her in cross-examination:“Q.I suggest that your car was touching the one in front because you banged into it.A.But I didn’t feel anything.Q.Do you deny that you banged into it.A.When he told me I said ‘Sorry’, yes, but I didn’t feel anything when I parked my car.HIS HONOURQ.Did you hear anything.A.Nothing, Your Honour. This is the bizarre thing.”[4][4] Trial Transcript pages 70-71

Decision

Reasons for decision

SULAN J

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Ratio Decidendi

Legal Principle Established

Established by: SULAN J

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Actions

Citations

Caruso v Iarossi and SGIC No. Scciv-03-340 [2003] SASC 177

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Fox v Percy [2003] HCA 22
Citation 2 (Para 16)

…ect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.” [7] [2003] HCA 22 Judgment No S88 of 2002 [8] (1979) 142 CLR 531. [9] [2003] HCA 22 Judgment No S88 of 2002 at 6.…
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3
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DeVries v Australian National Railways Commission [1993] HCA 78
Citation 4 (Para 18)

…th facts and incontrovertibly established by the evidence[15]’ or which was ‘glaringly improbable[16]’. [12] (1990) 171 CLR 167. [13] (1993) 177 CLR 472. [14] SS Hontestroom v SS Sagaporack [1927] AC 37 at 47 [15] Brunskill (1985) 59 ALJR 842 at 844; 62 ALR 53 at 57 [16] Brunskill (1985) 59 ALJR 842 at 844; 62 ALR 53…
Abalos v Australian Postal Commission [1990] HCA 47
Citation 5 (Para 18)

…hich was ‘inconsistent with facts and incontrovertibly established by the evidence[15]’ or which was ‘glaringly improbable[16]’. [12] (1990) 171 CLR 167. [13] (1993) 177 CLR 472. [14] SS Hontestroom v SS Sagaporack [1927] AC 37 at 47 [15] Brunskill (1985) 59 ALJR 842 at 844; 62 ALR 53 at 57 [16] Brunskill (1985) 59 A…
Jones v Hyde [1989] HCA 20
Citation 6 (Para 21)

…rial.” [19] [2003] HCA 27 S212/2002. [20] [2003] HCA 27 S212/2002.at 5. [21] Warren v Coombes (1979) 142 CLR 531 at 553 [22] See Jones v Hyde (1989) 63 ALJR 349 at 351-351; 85 ALR 23 at 27-28; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; Devries v Australian National Railways Commission (1993) 177…
Brunskill v Sovereign Marine & General Insurance Co Ltd [1985] HCA 61
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Warren v Coombes [1979] HCA 9
Citation 8 (Para 16)

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Dearman v Dearman [1908] HCA 84
Citation 9 (Para 17)

…witnesses, and should make due allowance in this respect[11]’.” [10] [2003] HCA 22 Judgment No S88 of 2002 at 6. [11] See Dearman v Dearman (1908) 7 CLR 549 at 564 citing T he Glannibanta 91876) 1 PD 283 at 287…

Legislation Cited

No legislation cited in this judgment.