Costa v Goudappel

[2021] ACTMC 7

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Costa v Goudappel & Anor

Citation:

[2021] ACTMC 7

Hearing Date(s):

23-25 November 2020; 11 December 2020

DecisionDate:

20 May 2021

Before:

Magistrate Morrison

Decision:

See paragraphs [148], [160]

Catchwords:

TORTS – NEGLIGENCE – factual causation – claim for damages arising from motor vehicle accident – whether breach of duty caused harm

Legislation Cited:

Civil Law (Wrongs) Act 2002, s 45

Evidence Act 2001, ss 4, 63, 135, 136, 137

Cases Cited:

Lumley v Sainsbury [2017] ACTSC 40

Purkess v Crittenden [1965] HCA 34, 114 CLR 164

Seltsam Pty Limited v Ghaleb [2005] NSWCA 208

Kiiver v King [2013] ACTSC 142

Grigoriadis v Sidiropoulos [2019] NSWDC 486

King v Barrie [2020] ACTSC 36

Texts Cited:

Australian Law Reform Commission, Evidence (Interim) (Report No 26, August 1985)

Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 15^th ed, 2020)

Parties:

Carmelina Costa (Plaintiff)

Petronella Goudappel (First Defendant)

Insurance Australia Limited, trading as NRMA Insurance (Second Defendant)

Representation:

Counsel

Mr L Edwards (Plaintiff)

Dr K Rewell SC (First and Second Defendant)

Solicitors

Maliganis Edwards Johnson (Plaintiff)

Sparke Helmore Lawyers (First and Second Defendant)

File Number(s):

CS 229 of 2019

MAGISTRATE MORRISON:

1. The plaintiff claims damages for personal injuries sustained in a collision on 29 November 2016, when she was a passenger in a car owned by her son-in-law and being driven by her daughter, Ms Bianca Noja. I refer to it as the Mazda. The plaintiff says that it collided with a Citroen car being reversed by the first defendant. The plaintiff points to damage to the passenger door as supporting evidence of the fact of the collision and the extent of it.

1. The defendants say that the collision did not occur in the manner alleged by the plaintiff in that the contact between the cars was very slight. They also say that the collision cannot have caused the damage to the front door of the plaintiff’s vehicle and that the slight impact which took place cannot have caused the harm of which the plaintiff complains.

Preliminary matters

1. There are two preliminary matters to be dealt with.

Admissibility of the statement of Mr Herfst

1. The first preliminary matter is the admissibility of a statement given by Mr Bill Herfst. He shared the residence at 16 Orange Thorn Crescent with the first defendant and was a passenger in the vehicle driven by her at the time of the accident. He made a written statement to an investigator, Mr Alan Hodge on 22 January 2019. He did not give testimony in Court. There is no contest that he was unable to do so by reason of suffering from dementia and that he is therefore a person not available to give evidence about a fact for the purpose of s 4(1) of Part 2 of the dictionary to the Evidence Act 2011 (ACT). The defence seeks admission of the statement under s 63 of that Act. The plaintiff seeks its exclusion…