Debora Karina Henley v Kim Tu - [2009] ACTSC 37

DEBORA KARINA HENLEY v KIM TU
[2009] ACTSC 37 (3 April 2009)

TORTS – negligence – motor vehicle accident – vehicle entering carparking space struck open door of vehicle in adjoining space – plaintiff suffered from complex regional pain syndrome involving injuries to left arm and shoulder region and depression – whether defendant failed to take steps to avoid accident – whether defendant paid proper attention – whether plaintiff guilty of contributory negligence in not keeping proper lookout – award of damages

Held: defendant liable and plaintiff guilty of contributory negligence – contributory negligence assessed at 50 per cent and damages awarded to plaintiff reduced accordingly.

EVIDENCE – rule against admissibility of opinion evidence – exception for expert evidence – accountant’s report tendered – objection on basis that opinions therein not wholly or substantially based on specialised knowledge – effect of abolition of rule against admissibility of opinions about matters of common knowledge

Held: accountant’s report received into evidence.

Evidence Act 1995 (Cth) ss 76, 79, 80(b)

Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR 397
CSR Ltd v Eddy (2005) 226 CLR 1
Fox v Wood (1981) 148 CLR 438
Griffiths v Kerkemeyer (1977) 139 CLR 161
Hannes v Director of Public Prosecutions (Cth) (No 2) (2006) 205 FLR 217
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Parente v Bell (1967) 116 CLR 528
Pennington v Norris (1956) 96 CLR 10
Tzouvelis v Victorian Railways Commissioners [1968] VR 112
Van Gervan v Fenton (1992) 175 CLR 327
Vaughan v Smith [2007] ACTSC 45
Velevski v The Queen (2002) 76 ALJR 402; 187 ALR 233

Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485

Heydon JD, Cross on Evidence (7^th Australian ed, LexisNexis Butterworths, 2004)

No. SC 898 of 2005

Judge: Besanko J
Supreme Court of the ACT

Date: 3 April 2009

IN THE SUPREME COURT OF THE       )
  )          No. SC 898 of 2005
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN: DEBORA KARINA HENLEY
Plaintiff

AND:KIM TU
Defendant

ORDER

Judge:  Besanko J
Date:  3 April 2009
Place:  Adelaide (via video link with Canberra)

THE COURT ORDERS THAT:

The parties are to be heard as to the appropriate orders and on the question of costs.

On 1 October 2002, the plaintiff suffered an injury when the defendant’s motor vehicle struck her motor vehicle. At first, the plaintiff’s injuries appeared quite minor, but, as time passed, they developed into serious injuries which have had, and continue to have, a significant impact on the plaintiff’s quality of life and working capacity.

The plaintiff brings this action against the defendant, claiming damages for the tort of negligence. The defendant denies liability and, in the alternative, she alleges that the plaintiff was guilty of contributory negligence. In her defence, the defendant denied that the plaintiff suffered loss and damage as a result of the accident, but, by the conclusion of the trial, the defendant accepted that the plaintiff suffered and…

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.

Keep reading for free

Create a free CaseChat account to read Debora Karina Henley v Kim Tu and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] ACTSC 37
Decision Date: 3 April 2009

CaseChat Overview and Summary

The matter before the court involved Debora Karina Henley, the plaintiff, and Kim Tu, the defendant. The dispute arose from a motor vehicle accident where the defendant's vehicle entered a carparking space and struck the open door of the plaintiff's vehicle, which was parked in the adjoining space. This resulted in the plaintiff suffering from complex regional pain syndrome involving injuries to her left arm and shoulder region, as well as depression. The court was tasked with determining whether the defendant failed to take steps to avoid the accident, did not pay proper attention, and whether the plaintiff was guilty of contributory negligence for not keeping a proper lookout. The court found the defendant liable but also found the plaintiff guilty of contributory negligence, which was assessed at 50%. Consequently, the damages awarded to the plaintiff were reduced accordingly.

The legal issues before the court included the standard of care owed by the defendant to avoid the accident, whether the defendant's actions were negligent, and whether the plaintiff's failure to maintain a proper lookout contributed to the accident. The court considered the principles of negligence, including the foreseeability of harm, the degree of risk, and the burden of taking precautions. The evidence presented included expert reports and testimonies, which the court had to evaluate to determine the extent of negligence on both sides.

In its reasoning, the court examined the circumstances of the accident and the actions of both parties leading up to it. The court concluded that the defendant's entry into the carparking space was negligent, as they failed to take reasonable steps to avoid the open door of the plaintiff's vehicle. The court also found that the plaintiff was contributory negligent, as she did not keep a proper lookout, which contributed to the accident. The court applied the principle of apportionment of damages, reducing the total damages awarded to the plaintiff by 50% to account for her contributory negligence.

The court also addressed an evidentiary issue regarding the admissibility of an accountant's report. The defendant objected to the report on the basis that the opinions expressed were not based on specialised knowledge. However, the court considered the impact of legislative changes that abolished the rule against admissibility of opinions about matters of common knowledge. The court held that the accountant's report was admissible as it contained evidence relevant to the damages claimed. The court's final orders included a direction for the parties to be heard on the appropriate orders and the question of costs.

Orders

Orders of the court

1. The parties are to be heard as to the appropriate orders and on the question of costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.