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Dregorius v Tisma

Dregorius v Tisma

Case [2020] NSWDC 489 28 August 2020

Negligence

Breach of Duty of Care

Compensatory Damages

Contributory Negligence

Assessment of Damages

Tort Law

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District Court

New South Wales

Medium Neutral Citation: Dregorius v Tisma [2020] NSWDC 489
Hearing dates: 23 June 2020
24 June 2020
25 June 2020
26 June 2020
29 June 2020
Date of orders: 28 August 2020
Decision date: 28 August 2020
Jurisdiction: Civil
Before: Montgomery DCJ
Decision:
1 Judgment for the plaintiff in the sum of $171,486.
2 The Insurer is to have a credit from the judgment sum on account of s 83 payments in the amount of $6,471.
3 Defendant to pay the plaintiff’s costs.

Catchwords:
Torts – Negligence – Motor Vehicle Accident – Breach of Duty of Care – Civil Liability Act, ss 5B, 5D, 5E – Motor Accidents Compensation Act 1999 (NSW) s 3A – Definition of “Driver” – Meaning of “in charge”; “Motor Accident”; “Dangerous Situation” – Rule in Jones v Dunkel (1959) 101 CLR 298 – Cause of Harm – Contributory Negligence – Assessment of Damages

Legislation Cited:
Civil Liability Act 2002 (NSW) ss 5B, 5B(1), 5B(1)(c), 5B(2), 5B(2)(a), 5B(2)(c), 5B(2)(d), 5D, 5R, 5S
Motor Accidents Compensation Act 1999 (NSW) ss 3, 3(b), 3(d), 3A, 3A(1), 3A(1)(a), 3A(1)(c), 83, 126, 131, 134, 138(1), 138(3)
Motor Accidents Act 1988 (NSW) ss 9, 3(1)(b)
Evidence Act 1995 (Cth) s 144

Cases Cited:
Allianz Australia Insurance Limited v GSF Australia Propriety Limited & Anor (2005) CLR 221 568; [2005] HCA 26
AMP General Insurance Limited v Maguire (2004) 59 NSWLR 580; [2004] NSWCA 64
Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v Workers’ Compensation NominalInsurer (2018) 98 NSWLR 171; [2018] NSWCA 146
Bayon v Bayon [2014] NSWCA 434
David Jones Ltd v Bates [2001] NSWCA 223
Insurance Commission of Western Australia v Container Handler Pty Ltd (2004) 218 CLR 89; [2004] HCA 24
Jones v Dunkel (1959) 101 CLR 298
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20
Mason v Demasi [2009] NSWCA 227
Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492
Raad v VM & KTP Holdings Pty Ltd [2017] NSWCA 190
Shortland City Council v GIO (NSW) [1973] 2 NSWLR 257

Category: Principal judgment
Parties:
Ms Lucy Dregorius (Plaintiff)
Mr Milenko Tisma (Defendant)
Representation:
Counsel:

Mr Andrew McSpedden (Plaintiff)

Mr Keith Rewell SC (Defendant)

Solicitors:

Turner Freeman Lawyers (Plaintiff)
Sparke Helmore Lawyers (Defendant)

File Number(s): 2017/00325167
Publication restriction: N/A

Judgment

The plaintiff, who was born in Poland in August 1955, sues for personal injury damages consequent of her being run over and dragged beneath the defendants rolling car on the driveway of the defendant’s home property on 19 May 2015. They were in the process of rolling it down his sloping driveway to the street. She was nearly 60 years of age. He was 77 years of age. Her claim in the proceedings is governed by the provisions of the Motor Accidents Compensation Act 1999 (the Mac Act).

PLEADINGS AND ISSUES

By Statement of Claim filed 26 October 2017, the plaintiff pleaded that when she attended the defendant’s home, he invited her to…

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.

Continue reading Dregorius v Tisma

Details

AGLC: Dregorius v Tisma [2020] NSWDC 489
Case: [2020] NSWDC 489
Decision Date: 28 August 2020

CaseChat Overview and Summary

The case of Dregorius v Tisma involved a claim for damages resulting from a motor vehicle accident. The plaintiff, Dregorius, sought compensation for injuries sustained when the defendant, Tisma, allegedly breached the duty of care owed to him. The case was heard in the Supreme Court of New South Wales. The plaintiff contended that the defendant was negligent in causing the accident, while the defendant argued that the plaintiff was contributorily negligent and that the accident did not constitute a motor accident under the Motor Accidents Compensation Act 1999 (NSW). The court was tasked with determining whether the defendant breached the duty of care, whether the plaintiff’s injuries were caused by this breach, and if so, what the appropriate quantum of damages would be.

The court had to interpret various statutory provisions and common law principles to determine the applicability of the Motor Accidents Compensation Act 1999 (NSW) to the circumstances of the case. Key issues included the definition of “driver” and “in charge” under the Act, as well as the meaning of “motor accident” and “dangerous situation.” The court also had to consider the rule in Jones v Dunkel, which addresses causation in cases of multiple potential causes of harm. Additionally, the court needed to assess the extent of the plaintiff’s contributory negligence and its impact on the damages recoverable. The court applied these legal principles to the facts of the case to determine the liability and the quantum of damages.

In its judgment, the court held that the defendant breached the duty of care owed to the plaintiff, and that this breach caused the plaintiff’s injuries. The court found that the accident did constitute a motor accident under the Motor Accidents Compensation Act 1999 (NSW) and that the plaintiff’s contributory negligence was 25%. The court assessed the damages recoverable by the plaintiff and made appropriate deductions for the contributory negligence. The court ordered judgment for the plaintiff in the sum of $171,486, with a credit to the defendant’s insurer for $6,471 in s 83 payments. The court also ordered that the defendant pay the plaintiff’s costs.

Orders

Orders of the court

1 Judgment for the plaintiff in the sum of $171,486.

2 The Insurer is to have a credit from the judgment sum on account of s 83 payments in the amount of $6,471.

3 Defendant to 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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Citations

AGLC Citation

Dregorius v Tisma [2020] NSWDC 489

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 13 of 13 shown

Avopiling Pty Ltd v Bosevski
[2018] NSWCA 146 Para 155

…(1990) 169 CLR 638; [1990] HCA 20 and Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v Workers’ Compensation Nominal Insurer (2018) 98 NSWLR 171; [2018] NSWCA 146.…
Raad v VM & KTP Holdings Pty Ltd
[2017] NSWCA 190 Para 102

…to be made for contributory negligence requires an evaluative judgment apportioning responsibility for the accident: Raad v VM & KTP Holdings Pty Ltd [2017] NSWCA 190 at [36]. In Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492; 59 ALR 529; [1985] HCA 34, the High Court described the task to be…
Bayon v Bayon
[2014] NSWCA 434 Para 81

…g mindful that the words in the Western Australian Act were “directly caused” and s 3A Mac Act employs “is caused by” : Bayon v Bayon [2014] NSWCA 434 per Basten JA at [15]‑[16]. Similarly, statutory provisions construed by the High Court in the Allianz case are no longer to be found in the definition of “injury” n…
Mason v Demasi
[2009] NSWCA 227 Para 117

…for the purposes of treatment rather than for the purpose of recording a detailed history for admission into a Court trial: see Mason v Demasi [2009] NSWCA 227 per Basten JA at [2]. The word “Ongoing” combined with the reference “see Dr Harget” was a deliberate clinical descriptive of the pain as not merely episod…
Allianz Australia Insurance Ltd v GSF Australia Pty Ltd
[2005] HCA 26 Para 79

…but rather, wholly the removal of the wheel chocks: Allianz Australia Insurance Limited v GSF Australia Propriety Limited & Anor (2005) CLR 221 568; [2005] HCA 26 per McHugh J at [59]‑[61]; Gummow, Hayne and Heydon JJ at [91]‑[95].…
Insurance Commission of Western Australia v Container Handlers Pty Ltd
[2004] HCA 24 Para 78

…As was said by McHugh JA in Insurance Commission of Western Australia v Container Handler Pty Ltd (2004) 218 CLR 89; [2004] HCA 24 at [53]:…
AMP General Insurance Ltd v Maguire and Anor t/as MJM Automotive Mechanical Repairs & 2 Ors
[2004] NSWCA 64 Para 67

…In AMP General Insurance Limited v Maguire (2004) 59 NSWLR 580; [2004] NSWCA 64, Handley JA, was required to consider who was “in charge of” a motor vehicle for the purposes of s 3(1)(b) of the Motor Accidents Act 1988 (NSW), which terms were identical for present purposes to the definition of “driver” in s 3 Mac…
State Bank of NSW & Anor. v Brown
[2001] NSWCA 223 Para 83

…led to take reasonable precautions ( s 5B(1)(c) , s 5B(2) CLA ). The test has never been: was there more she could have done: David Jones Ltd v Bates [2001] NSWCA 223.…
Malec v JC Hutton Pty Ltd
[1990] HCA 20

…rn Australia v Container Handler Pty Ltd (2004) 218 CLR 89; [2004] HCA 24 Jones v Dunkel (1959) 101 CLR 298 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 Mason v Demasi [2009] NSWCA 227 Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 Raad v VM & KTP Holdings Pty Ltd [2017] NSWCA 190 Shortland Cit…
Podbrebersek v Australian Iron & Steel Pty Ltd
[1985] HCA 34 Para 102

…dent: Raad v VM & KTP Holdings Pty Ltd [2017] NSWCA 190 at [36]. In Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492; 59 ALR 529; [1985] HCA 34, the High Court described the task to be undertaken by the Court at [10] as follows:…
Jones v Dunkel
[1959] HCA 9 Para 7

…ce does not establish a positive inference that the gear lever was in Park and the handbrake engaged when the plaintiff attended it on 19 May 2015: Jones v Dunkel (1959) 101 CLR 298 at 304‑305 per Dixon CJ. As was stated by Kitto J at 205:…
Jones v Dunkel
[1959] HCA 8 Para 7

…ablish a positive inference that the gear lever was in Park and the handbrake engaged when the plaintiff attended it on 19 May 2015: Jones v Dunkel (1959) 101 CLR 298 at 304‑305 per Dixon CJ. As was stated by Kitto J at 205:…
Podrebersek v Australian Iron & Steel Pty Ltd
(1985) 59 ALR 529 Para 102

…egligence requires an evaluative judgment apportioning responsibility for the accident: Raad v VM & KTP Holdings Pty Ltd [2017] NSWCA 190 at [36]. In Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492; 59 ALR 529; [1985] HCA 34, the High Court described the task to be undertaken by the Court at [10] as follows:…

Legislation cited in this decision · 5

Motor Accidents Compensation Act 1999 (NSW)
126, 131, 134, 138(1, 3, 3(b), 3(d), 3A,... 13 mentions (from Para 1)
Civil Liability Act 2002 (TAS)
5B, 5B(1), 5B(1)(c), 5B(2), 5B(2)(a), 5B... 10 mentions
Motor Accidents Act 1988 (NSW)
3(1)(b), 9 3 mentions (from Para 67)
Evidence Act 1995 (Cth)
144 2 mentions (from Para 58)
Motor Accident Compensation Act 1999 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	Dregorius v Tisma [2020] NSWDC 489
Hearing dates:	23 June 2020 24 June 2020 25 June 2020 26 June 2020 29 June 2020
Date of orders:	28 August 2020
Decision date:	28 August 2020
Jurisdiction:	Civil
Before:	Montgomery DCJ
Decision:	1 Judgment for the plaintiff in the sum of $171,486. 2 The Insurer is to have a credit from the judgment sum on account of s 83 payments in the amount of $6,471. 3 Defendant to pay the plaintiff’s costs.
Catchwords:	Torts – Negligence – Motor Vehicle Accident – Breach of Duty of Care – Civil Liability Act, ss 5B, 5D, 5E – Motor Accidents Compensation Act 1999 (NSW) s 3A – Definition of “Driver” – Meaning of “in charge”; “Motor Accident”; “Dangerous Situation” – Rule in Jones v Dunkel (1959) 101 CLR 298 – Cause of Harm – Contributory Negligence – Assessment of Damages
Legislation Cited:	Civil Liability Act 2002 (NSW) ss 5B, 5B(1), 5B(1)(c), 5B(2), 5B(2)(a), 5B(2)(c), 5B(2)(d), 5D, 5R, 5S Motor Accidents Compensation Act 1999 (NSW) ss 3, 3(b), 3(d), 3A, 3A(1), 3A(1)(a), 3A(1)(c), 83, 126, 131, 134, 138(1), 138(3) Motor Accidents Act 1988 (NSW) ss 9, 3(1)(b) Evidence Act 1995 (Cth) s 144
Cases Cited:	Allianz Australia Insurance Limited v GSF Australia Propriety Limited & Anor (2005) CLR 221 568; [2005] HCA 26 AMP General Insurance Limited v Maguire (2004) 59 NSWLR 580; [2004] NSWCA 64 Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v Workers’ Compensation NominalInsurer (2018) 98 NSWLR 171; [2018] NSWCA 146 Bayon v Bayon [2014] NSWCA 434 David Jones Ltd v Bates [2001] NSWCA 223 Insurance Commission of Western Australia v Container Handler Pty Ltd (2004) 218 CLR 89; [2004] HCA 24 Jones v Dunkel (1959) 101 CLR 298 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 Mason v Demasi [2009] NSWCA 227 Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 Raad v VM & KTP Holdings Pty Ltd [2017] NSWCA 190 Shortland City Council v GIO (NSW) [1973] 2 NSWLR 257
Category:	Principal judgment
Parties:	Ms Lucy Dregorius (Plaintiff) Mr Milenko Tisma (Defendant)
Representation:	Counsel: Mr Andrew McSpedden (Plaintiff) Mr Keith Rewell SC (Defendant) Solicitors: Turner Freeman Lawyers (Plaintiff) Sparke Helmore Lawyers (Defendant)
File Number(s):	2017/00325167
Publication restriction:	N/A