Christopher James Fleming v Graeme Shoobridge - [2009] ACTSC 80

CHRISTOPHER JAMES FLEMING v GRAEME SHOOBRIDGE
[2009] ACTSC 80 (8 July 2009)

EX TEMPORE JUDGMENT

NEGLIGENCE – personal injury – motor vehicle – plaintiff standing on passenger side – hand caught in door handle – defendant moving off – defendant should have ensured plaintiff was clear of vehicle – defendant negligent – no contributory negligence

DAMAGES – personal injury – injuries to both knees – future surgery likely – plaintiff warehouse supervisor – impairment of earning capacity – no issue of principle

Ratcliffe v Jackson (1993) 18 MVR 291
Wyong Shire Council v Shirt (1980) 146 CLR 40

No. SC 127 OF 2007

Judge: Master Harper
Supreme Court of the ACT

Date: 8 July 2009

IN THE SUPREME COURT OF THE       )
  )          No. SC 127 of 2007
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:CHRISTOPHER JAMES FLEMING
Plaintiff

AND:GRAEME SHOOBRIDGE
Defendant

ORDER

Judge:  Master Harper
Date:  8 July 2009
Place:  Canberra

THE COURT ORDERS THAT:

Judgment be entered for the plaintiff in the sum of $325,000.00

The defendant pay the plaintiff’s costs.

This is a claim for damages for personal injury arising out of a somewhat unusual incident involving a motor vehicle. The claim is made against the registered owner of the vehicle, who is the stepfather of the driver, Tracey Johnston. The plaintiff was born in Canberra in 1974 and he will be 35 next month. The accident happened on 14 August 2006. The plaintiff was then in a long term relationship with Tracey. At that time their household consisted of the plaintiff and Tracey, her son Matthew who is now 14 and would then have been 11, the plaintiff’s son Michael then nine and now 12 years old, and the daughter of the plaintiff and Tracey, Emily, who was then three and is now five.

The accident happened at about 3.00 pm on the plaintiff’s 32nd birthday. The plaintiff had come home early from work. He had a conversation with Tracey, who was sitting in the driver’s seat of the car with the engine running. The plaintiff was standing on the passenger side of the car. He spoke to her through the partly open front passenger window. The car was stationary outside their home. The plaintiff in the course of the conversation adopted a position where he was leaning against the passenger side of the car with his right arm resting on the windowsill and his left hand through the front passenger door handle.

At the end of their conversation the plaintiff moved back from the car as the driver started the car to drive off. His hand had not been removed from the door handle. It was caught in the handle as the car moved forward. He was dragged a distance of perhaps five or six metres, falling to his knees and being dragged on his knees on the jagged bitumen surface of the street which had recently been resurfaced.

In relation to liability I have been referred by counsel for the plaintiff to the decision of…

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.

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Details

Case: [2009] ACTSC 80
Decision Date: 8 July 2009

CaseChat Overview and Summary

The case before the court involved a dispute between Christopher James Fleming, the plaintiff, and Graeme Shoobridge, the defendant, concerning a personal injury incident arising from a motor vehicle accident. The plaintiff, who was standing on the passenger side of the defendant’s vehicle, had his hand caught in the door handle. As the defendant began to move off, the plaintiff’s hand was dragged, resulting in injuries to both knees. The plaintiff sought damages for the injuries sustained, claiming that the defendant was negligent in not ensuring that he was clear of the vehicle before moving off. The defendant, in turn, did not contest the negligence but argued that the plaintiff had contributorily contributed to the accident.

The primary legal issue before the court was whether the defendant was negligent in the circumstances leading to the plaintiff’s injuries and, if so, whether the plaintiff had contributed to the injury. The court needed to assess the standard of care expected from the defendant in ensuring the plaintiff’s safety and whether the plaintiff’s actions, if any, contributed to the accident. Additionally, the court had to determine the extent of the plaintiff’s injuries, the likely future medical expenses, and the impact on his earning capacity.

The court found that the defendant was indeed negligent, as he failed to ensure that the plaintiff was clear of the vehicle before moving off. The court rejected the defendant’s argument that the plaintiff had contributed to the accident, finding that the primary cause was the defendant’s failure to check for the plaintiff’s presence. The court also assessed the plaintiff’s injuries, noting that future surgery was likely and that there was an impairment of the plaintiff’s earning capacity. The court awarded damages of $325,000 to the plaintiff, reflecting the severity of the injuries and their impact on the plaintiff’s life.

In its final orders, the court entered judgment for the plaintiff in the sum of $325,000 and ordered the defendant to pay the plaintiff’s costs. This decision underscored the importance of ensuring passenger safety before moving a vehicle and the need for drivers to exercise reasonable care to avoid injury to bystanders.

Orders

Orders of the court

1. Judgment be entered for the plaintiff in the sum of $325,000.00

2. The defendant pay the plaintiff's costs.

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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