Carvalho v Town

[2020] ACTCA 54

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title: 

Carvalho v Town

Citation: 

[2020] ACTCA 54

Hearing Date: 

4 November 2020

Decision Date: 

13 November 2020

Before: 

Murrell CJ, Loukas-Karlsson and Stewart JJ

Decision: 

The appeal is dismissed with costs.

Catchwords: 

APPEAL – NEGLIGENCE – Appeal from Supreme Court – Breach of duty – Whether arguable grounds raised on appeal –

Whether Magistrate erred in the apportionment of damages for

contributory negligence – Appeal dismissed

Legislation Cited: 

Civil Law (Wrongs) Act 2002 (ACT) s 102(1)(b)

Cases Cited: 

Lee v McGrath [2019] ACTCA 6
Watt v Bretag (1982) 41 ALR 597

Parties: 

Benjamin Leomar Carvalho (Appellant)
Daniel Frederick Town (First Respondent)

Australian Capital Territory Insurance Authority (Second
Respondent)

Representation: 

Counsel

Self-represented (Appellant)
S Whybrow (First and Second Respondent)

Solicitors

Self-represented (Appellant)
ACT Government Solicitor (First and Second Respondent)

File Number: 

ACTCA 15 of 2020

Decision under appeal: 

Court/Tribunal:	ACT Supreme Court
Before:	Mossop J
Date of Decision:	20 February 2020
Case Title:	Carvalho v Town
Citation:	[2020] ACTSC 1

THE COURT: Introduction 

1.       On 27 February 2013, a motor vehicle driven by the appellant was involved in a collision with what is commonly referred to as a fire engine on Adelaide Avenue immediately outside The Lodge in Canberra. Almost three years later, the appellant as plaintiff commenced a proceeding in the ACT Magistrates Court against the driver of the fire engine and the ACT Insurance Authority (the Authority) for damages for personal injuries arising from the collision.

2.       By reasons delivered on 5 November 2018, the learned Magistrate found that the collision was caused by the negligence of the drivers of both vehicles and apportioned their responsibility for the collision 60/40 against the appellant. The learned Magistrate

assessed the appellant’s damages as $40,600 but, after taking into account the

apportionment and the cost of repairs to the fire engine which were sought as damages by way of cross-claim, subsequently made an order that the Authority pay the appellant $12,429.23 and costs assessed at $2,500.

3.       It is relevant to note that, at the trial of the proceeding, the appellant was represented by counsel. Amongst other evidence, the appellant relied on the evidence of himself and his mother and the expert evidence of an accident reconstruction specialist, Mr

Johnston. The appellant’s counsel cross-examined the respondents’ witnesses,

including the driver of the fire engine and two other personnel who were in the fire
engine at the time of the collision.

1. Each side’s accident reconstruction expert gave evidence concurrently and was

   examined and cross-examined. The trial was conducted over three days and generated more than 300 pages of transcript. Eight witnesses were cross-examined.

5.       Dissatisfied with the findings of the learned Magistrate, the appellant appealed to the Supreme Court. The appeal was heard by a judge of the Court who dismissed the appeal in written reasons published on 20 February 2020. The appellant was self- represented in the appeal proceeding. He raised a plethora of issues which were dealt

with carefully…