Egan v Mangarelli - [2012] NSWSC 867

Supreme Court

New South Wales

Medium Neutral Citation: Egan v Mangarelli & Ors [2012] NSWSC 867
Hearing dates: 22/11/2011, 23/11/2011, 24/11/2011, 25/11/2011, 28/11/2011, 29/11/2011, 30/11/2011, 1/12/11, 6/12/2011, 10/4/2012, 11/4/2012, 12/4/2012, 13/4/2012
Decision date: 07 August 2012
Jurisdiction: Common Law
Before: HOEBEN J
Decision:
Judgment for the defendants.
The plaintiff is to pay the defendants' costs of the proceedings.

Catchwords: TORTS - negligence - motor vehicle accident - boy on bicycle crossing road - collision with bus - unreliability of plaintiff's version of how accident occurred - inability of expert evidence to fill factual gaps - inability of plaintiff to prove failure to keep proper lookout on part of bus driver - inability of plaintiff to prove breach of duty by bus driver in failing to apply emergency braking - causation - contributory negligence - damages - assessment on a contingency basis.
Legislation Cited: Motor Accidents Compensation Act 1999
Cases Cited: Joslyn v Berryman & Anor [2003] HCA 34; 214 CLR 552
Luxton v Vines [1952] HCA 19; 85 CLR 352
Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34; 59 ALJR 492
Category: Principal judgment
Parties: Mitchell Joseph William Egan - Plaintiff
Johnny Carmine Mangarelli - First Defendant
Westbus Region 3 Pty Ltd - Second Defendant
Representation: Counsel:
Mr H Marshall SC/Mr P Frame - Plaintiff
Mr DE Grieve QC/Mr TJ Clarke - Defendants
Solicitors:
Slater and Gordon Lawyers - Plaintiff
Vardanega Roberts Solicitors - Defendants

File Number(s): 2010/126606

Judgment

HIS HONOUR:

Nature of proceedings

On 1 July 2007 a collision took place between a bus owned by the second defendant, which was being driven by the first defendant, Mr Mangarelli, and the plaintiff. As a result of that collision, the plaintiff suffered brain damage and the loss of his right leg, which was amputated above the knee. The plaintiff said that he was commencing to cross Bunker Parade while straddling a bicycle when the collision occurred. The plaintiff said that Mr Mangarelli, and through him the second defendant, was negligent in failing to keep a proper lookout and in failing to apply the brakes on the bus in time.

Liability and damages were both in issue. The matter occupied 13 hearing days - 22 November to 6 December 2011 and 10 - 13 April 2012.

Factual background

Unless otherwise indicated, I find the facts to be as follows.

The plaintiff was born in December 1990 and was aged 16 at the time. He is now 21. Shortly before the accident, the plaintiff and his friend, William Aslett, who was then aged 14, decided to ride their bicycles to Bonnyrigg Plaza in order to get some lunch. To get there, they rode along an unnamed laneway which started at a park some hundreds of metres back from Bunker Parade, a suburban street in Bonnyrigg. The laneway continued on the other side of Bunker Parade. The plaintiff and Mr Aslett were travelling in a generally westerly direction.

At the intersection of the laneway with Bunker Parade,…

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 Egan v Mangarelli

Details

AGLC: Egan v Mangarelli [2012] NSWSC 867
Case: [2012] NSWSC 867
Decision Date: 07 August 2012

CaseChat Overview and Summary

The case of Egan v Mangarelli involved a dispute between the plaintiff, Egan, and the defendant, Mangarelli, arising from a motor vehicle accident. The incident occurred when the plaintiff, a young boy on a bicycle, collided with a bus driven by the defendant. The boy claimed that the bus driver had failed to maintain a proper lookout and did not apply emergency braking, leading to the accident. The case was brought before the court to determine whether the bus driver's negligence caused the collision and, if so, what damages should be awarded to the plaintiff.

The legal issues the court needed to address included whether the plaintiff could prove the bus driver's negligence, and if so, what caused the accident. The court also had to consider whether the plaintiff had contributed to the accident and assess the appropriate damages based on this contingency. Central to the court's deliberations was the plaintiff's version of events and the reliability of his account, as well as the capacity of expert evidence to fill any factual gaps.

The court found that the plaintiff's account of the accident was unreliable and that there were significant gaps in his testimony that could not be filled by expert evidence. As a result, the court was unable to conclude that the bus driver had failed to keep a proper lookout or that there was a breach of duty in not applying emergency braking. The court also found that the plaintiff had contributed to the accident, reducing the potential damages. Consequently, the court assessed the damages on a contingency basis, taking into account the plaintiff's contributory negligence.

The court ordered that the defendant's liability, if any, would be determined based on further evidence and that the damages would be assessed accordingly. This decision highlighted the importance of reliable evidence in establishing negligence and the impact of contributory negligence on the assessment of damages.

Orders