Colak v Ghalloub

[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.

4. 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…