Carvalho v Town - [2020] ACTSC 1

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Carvalho v Town
Citation:	[2020] ACTSC 1
Hearing Date:	9 December 2019
DecisionDate:	20 February 2020
Before:	Mossop J
Decision:	Appeal and cross-appeal dismissed – see [113]
Catchwords:	CIVIL LAW – NEGLIGENCE – Appeal from Magistrates Court – cross-appeal – collision involving appellant’s car and a fire engine – whether magistrate erred in finding fire officer breached his duty of care – he did not – whether magistrate’s apportionment of contributory negligence should be altered – it should not APPEAL – GENERAL PRINCIPLES – Leave to amend Statement of Claim and Statement of Particulars – leave to admit further evidence on appeal – applications refused
Legislation Cited:	Civil Law (Wrongs) Act 2002 (ACT), ss 43(2), 102 Magistrates Court Act 1930 (ACT), s 276
Cases Cited:	Davis v Swift [2014] NSWCA 458; 69 MVR 375 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Logar v Ambulance Service of NSW Sydney Region [2017] NSWCA 274; 82 MVR 216 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 Vakauta v Kelly (1989) 167 CLR 568
Parties:	Benjamin Carvalho (Appellant) Daniel Town (First Respondent) ACT Insurance Authority (Second Respondent)
Representation:	Counsel Self-represented (Appellant) S Whybrow (Respondents)
Solicitors Self-represented (Appellant) ACT Government Solicitor (Respondents)
File Number:	SCA 21 of 2019
Decision under appeal:	Court/Tribunal: ACT Magistrates Court Before: Magistrate Morrison Date of Decision: 5 November 2018 Case Title: Carvalho v ACT Insurance Authority Court File Number: CS 637 of 2016

MOSSOP J:

Introduction

This is an appeal from a judgment of a magistrate in a personal injury case involving a collision between the appellant’s vehicle and a fire engine. The accident occurred on 27 February 2013. The fire engine was travelling in a southbound direction on the roads around Parliament House when it was called back to attend to an incident in Ainslie. In order to return to the north side of Canberra the driver of the fire engine intended to use what was called a ‘crossover’ of the median strip on Adelaide Avenue. This would allow him to cross from the southbound lanes of Adelaide Avenue to the northbound lanes and then to travel north around Parliament House towards Ainslie. The crossover was a paved crossing of the median strip. It was not a route which was generally used by ordinary road users, even though it was open to them to do so. However, it provided for an emergency vehicle such as the fire engine a route by which the median strip could be crossed without the risk of becoming bogged on the grass of the median strip.

The driver of the fire engine needed to make a right turn to get onto the crossover. Because of the size of his vehicle and its significant turning circle, he commenced that turn from the middle lane on the road, crossing the right-hand southbound lane (referred to in the evidence as the ‘T2 lane’) in order…

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 Carvalho v Town

Details

AGLC: Carvalho v Town [2020] ACTSC 1
Case: [2020] ACTSC 1
Decision Date: 20 February 2020

CaseChat Overview and Summary

The case of Carvalho v Town involves a dispute arising from a collision between the appellant's car and a fire engine. The matter was heard initially in the Magistrates Court, with the appellant now appealing the decision, and the respondent cross-appealing. The core issue at the heart of this litigation is whether the magistrate made an error in concluding that the fire officer breached his duty of care. A secondary issue pertains to whether the magistrate's allocation of contributory negligence should be altered.

In addressing these legal questions, the court meticulously reviewed the evidence presented. The court found no basis to conclude that the magistrate had erred in holding that the fire officer breached his duty of care. Furthermore, the court determined that the magistrate's apportionment of contributory negligence was appropriate and should not be altered. The court rejected the applications to amend the Statement of Claim and Statement of Particulars, as well as the request to admit further evidence on appeal, finding no merit in these applications.

In summary, the appeal and cross-appeal were dismissed. The court's decision upheld the findings of the magistrate regarding the breach of duty of care and the allocation of contributory negligence. The court's ruling was final, with no further amendments or additional evidence permitted.

Orders

Orders of the court

Appeal and cross-appeal dismissed – see [113]

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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