Colak v Ghalloub

Case [2017] NSWDC 128


District Court


New South Wales

Medium Neutral Citation: Colak v Ghalloub [2017] NSWDC 128
Hearing dates: 8, 9, 10 February 2017; 20 and 21 April 2017
Date of orders: 30 May 2017
Decision date: 30 May 2017
Jurisdiction:Civil
Before: Gibson DCJ
Decision:

(1) Judgment for the defendant.
(2) Costs reserved.
(3) Liberty to apply in relation to costs.
(4) Exhibits retained for 28 days.

Catchwords: TORT – personal injury – motor vehicle accident – conflicting liability evidence – contributory negligence – damages
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 31.27(1)(c) and Sch 7, cl 5(1)(c)
Cases Cited: Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443
Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139
Dungan v Chan [2013] NSWCA 182
Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186
Gulic v O’Neil [2011] NSWCA 361
Hawthorne v Hillcoat (2008) 51 MVR 523
Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Marien v Gardiner [2013] NSWCA 396
Metaxoulis v McDonald’s Australia Ltd [2015] NSWCA 95
Vale v Eggins [2006] NSWCA 348
Category:Principal judgment
Parties: Plaintiff: Ali Colak
Defendant: Ghalloub Ghalloub
Representation:

Counsel:
Plaintiff: Mr J Turnbull SC
Defendant: Mr A J J Renshaw

  Solicitors:
Plaintiff: AJB Stevens Lawyers
Defendant: Sparke Helmore Lawyers
File Number(s): 2015/302011
Publication restriction: None

Judgment

The pleadings

  1. The plaintiff, by statement of claim filed on 15 October 2015, brings proceedings for damages for a motor vehicle accident which occurred on 9 October 2014.

  2. The circumstances of the accident, as set out in the statement of claim, were that the plaintiff was driving his motor vehicle in a northerly direction along Montrose Avenue, Merrylands, New South Wales, when the defendant reversed his motor vehicle out of a driveway and, according to paragraph 5 of the statement of claim, “as a consequence collided with the plaintiff’s vehicle”. This is one of a series of different descriptions of the motor vehicle accident; the different accounts the plaintiff gave to police, doctors, on his claim form and to the court were central issues in relation to liability.

  3. The particulars of negligence are as follows:

  1. Travelling at an unsafe speed;

  2. Failure to keep a proper look out

  3. Failure to ensure that the vehicle was kept under control;

  4. Failure to comply with the Motor Traffic Act and Regulations;

  5. Failing to steer, control, brake or otherwise control the vehicle;

  6. Driving in a careless manner under the circumstances;

  7. Failure to heed the risk of injury;

  8. Failed to observe the circumstances leading to the accident and failed to have regard to those circumstances and take action to avoid injury being occasioned to the Plaintiff;

  9. Travelled at an excessive speed in the circumstances;

  10. Such further or other particulars as may become evident.

  1. A defence of contributory negligence is pleaded in the defence filed on 3 March 2016. The particulars of contributory negligence are:

  1. driving in excess of the speed limit;

  2. failing to reduce his…

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AGLC
Colak v Ghalloub [2017] NSWDC 128
Case
[2017] NSWDC 128
Decision Date

CaseChat Overview and Summary

Colak v Ghalloub was a case in which the plaintiff, Colak, sought compensation for personal injuries sustained in a motor vehicle accident involving the defendant, Ghalloub. The dispute centred on the liability for the accident, the extent of Colak's injuries, and the degree of contributory negligence on the part of Colak. The case was heard in the Supreme Court of New South Wales. The primary issue before the court was to determine the extent to which each party was liable for the accident and the resulting injuries. This involved examining the conflicting evidence presented by both parties regarding the cause of the collision and the degree of fault attributable to each driver. Additionally, the court had to assess the extent of Colak's contributory negligence, if any, and how this might impact the quantum of damages awarded.

The court carefully reviewed the evidence, including witness statements, expert testimonies, and the factual circumstances surrounding the accident. It was noted that both parties provided conflicting accounts of the events leading up to the collision. The court found that the evidence did not establish a clear liability on the part of either party, as both presented credible arguments regarding the cause of the accident. Furthermore, the court determined that Colak's contributory negligence was a significant factor in the causation of the accident. Given this assessment, the court concluded that Colak was not entitled to any compensation for the injuries sustained, as his contributory negligence effectively barred his claim.

In light of the findings, the court delivered a judgment in favour of the defendant, Ghalloub, dismissing Colak's claim for damages. The court reserved the matter of costs, allowing for an application to be made in relation to the costs incurred by both parties. Additionally, the exhibits were retained for 28 days to facilitate any potential appeals or further proceedings. This decision underscores the importance of clear and consistent evidence in personal injury claims, particularly in cases involving conflicting liability evidence and contributory negligence.

Orders

Orders of the court

(1) Judgment for the defendant.

(2) Costs reserved.

(3) Liberty to apply in relation to costs.

(4) Exhibits retained for 28 days.

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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