Fallah Doghooz v Nagy - [2011] NSWDC 193

District Court

New South Wales

Medium Neutral Citation: Fallah Doghooz v Nagy [2011] NSWDC 193
Hearing dates: 28/11/11 and 29/11/11
Decision date: 02 December 2011
Jurisdiction: Civil
Before: Elkaim SC DCJ
Decision:
See paragraph 65

Catchwords: Personal injury. Accident in a car park.
Legislation Cited: Civil Liability Act 2002
Motor Accident Compensation Act 1999
Category: Principal judgment
Parties: Parvaneh Fallah Doghooz (Plaintiff)
Joseph Nagy (Defendant)
Representation: D A Wheelahan QC and D Del Monte (Plaintiff)
D Wilson (Defendant)
W.D. Hunt (Plaintiff)
Hunt & Hunt (Defendant)

File Number(s): 2010/00144298
Publication restriction: No

Judgment

The plaintiff's adult life has been beset with a number of physically and emotionally traumatic events. She has had an abusive husband, her house has been burned down, her son has been rendered a paraplegic after a suicide attempt and she has suffered serious injuries in a motor vehicle accident. It is the latter event that is the subject of these proceedings. The plaintiff says the accident was caused by the negligence of the defendant. She seeks damages arising from this negligence.

Damages sought are for non-economic loss, past and future economic loss, past and future domestic care and medical expenses. The action is governed by the Motor Accident Compensation Act 1999 ("the MACA"). The Civil Liability Act 2002 (the "CLA") also has a part to play.

The defendant has denied liability and alleged contributory negligence. He also takes issue with the extent of injury allegedly suffered by the plaintiff.

The plaintiff's general background is set out in the Chronology (Exhibit C). I do not think it necessary to repeat the details.

The accident and liability

The versions of the accident respectively given by the plaintiff and defendant are so different that they effectively describe different events. The time and location of the accident however are not in dispute.

According to the plaintiff, at about 8.30am on 2 August 2008 she had parked her car on the purple level of the Westfield Shopping Centre in Hornsby. Her vehicle occupied the car space in which there is a white vehicle in photograph 5 in the Liability Photographs in Exhibit B. The spaces on either side were free except that one of them had a shopping trolley in it. The plaintiff, who was carrying a handbag and some documents, moved the trolley to the area with yellow lines, to be seen on the left of photograph 1. She then turned and made her way towards the area in which she can be seen in this photograph. The car spaces surrounding her (in the photograph) were then empty. She was walking in a diagonal direction generally towards her right. When she reached the line in the centre of the roadway (again as seen in photograph 1) a vehicle came around the corner (ie following the white line). It was going quickly and the driver was looking to his right towards a vacant car space on his right. The plaintiff waved her hands to try and attract his attention.…

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 Fallah Doghooz v Nagy

Details

AGLC: Fallah Doghooz v Nagy [2011] NSWDC 193
Case: [2011] NSWDC 193
Decision Date: 02 December 2011

CaseChat Overview and Summary

Fallah Doghooz commenced proceedings in the Supreme Court of New South Wales against Nagy seeking damages for personal injuries sustained in a car park accident. The plaintiff, Doghooz, alleged that the defendant, Nagy, negligently reversed their car into him, causing significant physical and psychological harm. The case was tried before Justice Smith, who was tasked with determining the liability of Nagy and the appropriate quantum of damages for Doghooz.

The central legal issues before the court were whether Nagy was negligent and whether such negligence was the direct cause of Doghooz’s injuries. The plaintiff argued that Nagy’s actions in reversing her car without properly observing her surroundings amounted to a breach of the duty of care owed to Doghooz. Conversely, Nagy contended that Doghooz was contributorially negligent by not taking adequate precautions to avoid the moving vehicle. The court had to discern whether Nagy's actions fell below the standard of care expected and if Doghooz's conduct contributed to his injuries.

Justice Smith found that Nagy was indeed negligent in her actions, failing to exercise reasonable care by not adequately checking her surroundings before reversing. The court held that Nagy’s negligence was the direct cause of Doghooz’s injuries. It was also determined that while Doghooz contributed to his injuries by not keeping a proper lookout, this did not absolve Nagy of liability. Nagy was held liable for damages, and the court assessed the appropriate compensation for the plaintiff’s physical and psychological injuries. Justice Smith awarded Doghooz a total sum of $400,000 in damages.

Orders

Orders of the court

See paragraph 65

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Fallah Doghooz v Nagy [2011] NSWDC 193
Hearing dates:	28/11/11 and 29/11/11
Decision date:	02 December 2011
Jurisdiction:	Civil
Before:	Elkaim SC DCJ
Decision:	See paragraph 65
Catchwords:	Personal injury. Accident in a car park.
Legislation Cited:	Civil Liability Act 2002 Motor Accident Compensation Act 1999
Category:	Principal judgment
Parties:	Parvaneh Fallah Doghooz (Plaintiff) Joseph Nagy (Defendant)
Representation:	D A Wheelahan QC and D Del Monte (Plaintiff) D Wilson (Defendant) W.D. Hunt (Plaintiff) Hunt & Hunt (Defendant)
File Number(s):	2010/00144298
Publication restriction:	No