District Court
New South Wales
Medium Neutral Citation: Emvalomas v Bradley [2012] NSWDC 7 Hearing dates: 5, 6, 7 & 21 October 2011 Decision date: 09 February 2012 Jurisdiction: Civil Before: Levy SC DCJ Decision: 1.Verdict and judgment for the plaintiff in the sum of $1,130,455;
2.The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise entitled;
3.The exhibits may be returned;
4.Liberty to apply if further orders are required.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: TORTS - motor vehicle collision - pedestrian struck by motor vehicle at an intersection controlled by traffic control signals - factual dispute as to the colour displayed by traffic lights for control of vehicular and pedestrian traffic - factual dispute as to the relevant sequence of events; DAMAGES - whether failure to mitigate where treatment was delayed because CTP insurer declined to pay for recommended treatment - assessment of claimed heads of damage Legislation Cited: Australian Road Rules 2008, r 231
Evidence Act 1995, s 60
Motor Accidents Compensation Act 1999. s 126, s 128, s 136Cases Cited: Amoud v Al Batat [2009] NSWCA 333
Arnott v Choy [2010] NSWCA 259
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Fazlic v Milingimbi Community Inc [1982] HCA 3; (1982) 150 CLR 345
Flounders v Millar [2007] NSWCA 238
Haines v Bendall [1991] HCA 15; (1991) 172 CLR 60
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Manly v Alexander [2005] HCA 79
Mason v Demasi [2009] NSWCA 227
Miller v Galdarisi [2009] NSWCA 353
State of NSW v Moss [2000] NSWCA 133
Toll (FGCT) Pty Limited v Alphapharm Pty Ltd & Ors [2004] HCA 52; (2004) 219 CLR 165Category: Principal judgment Parties: Nicki-Lea Emvalomas (Plaintiff)
Janet Ruth Bradley (Defendant)Representation: Mr A Lidden SC with Mr M Daley (Plaintiff)
Mr JJ Ryan (Defendant)
Brydens (Plaintiff)
Curwoods (Defendant)
File Number(s): 2010/101250
Judgment
Table of Contents
A
INTRODUCTION
Nature of case
[1]
Facts not in dispute
[2] - [8]
Issues
[9] - [12]
Summary of findings
[13] - [17]
Evidence overview
[18] - [23]
Assessed heads of damage
[24]
B
LIABILITY EVIDENCE REVIEW AND FINDINGS
Plaintiff's pre-accident situation
[26] - [27]
Array of eyewitness descriptions of the events
[28] - [99]
Miss Devine
[29] - [43]
Plaintiff
[44] - [53]
Ms Chandler
[54] - [56]
Mr Miller
[57] - [77]
Defendant
[78] - [99]
Police investigation of the events of the collision
[100] - [130]
Defendant's statement to police
[101] - [104]
Plaintiff's statement to police
[105]
Sgt Burrows
[106] - [130]
Assessment of reliability of testimony
[131] - [209]
Ms…
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- Emvalomas v Bradley [2012] NSWDC 7
- Case
- [2012] NSWDC 7
- Decision Date
CaseChat Overview and Summary
The court was required to determine the factual circumstances surrounding the traffic signals and the sequence of events, as these were in dispute. Additionally, the court had to assess whether the plaintiff failed to mitigate their damages by delaying treatment due to a dispute with their CTP insurer over payment for recommended treatment. The plaintiff claimed various heads of damage, including general damages for pain and suffering, economic loss, and non-economic loss. The defendant argued that the plaintiff's failure to promptly seek treatment constituted a failure to mitigate damages.
In ruling on these issues, the court found that the traffic lights were displaying red, indicating that the plaintiff had the right of way. The court also determined that the sequence of events favoured the plaintiff's version of events. Regarding the mitigation of damages, the court found that the plaintiff did not unreasonably delay treatment and, therefore, was not required to mitigate damages. The court assessed the claimed heads of damage and found the plaintiff's claims to be substantiated, awarding damages accordingly. The court entered a verdict and judgment in favour of the plaintiff, awarding $1,130,455 in damages. The defendant was ordered to pay the plaintiff's costs on the ordinary basis unless otherwise entitled. The exhibits were to be returned, and liberty was granted to apply if further orders were required.
Orders
Orders of the court
1.Verdict and judgment for the plaintiff in the sum of $1,130,455;
2.The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise entitled;
3.The exhibits may be returned;
4.Liberty to apply if further orders are required.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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.