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Girmay v Green

Girmay v Green

Case [2021] TASSC 52 4 November 2021

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[2021] TASSC 52

COURT: SUPREME COURT OF TASMANIA

CITATION: Girmay v Green [2021] TASSC 52

PARTIES:  GIRMAY, Brehane Giday
  by his litigation guardian Tsege Gebregiorgis Behre
  v
  GREEN, Jason Vivian

FILE NO:  689/2008
DELIVERED ON:  4 November 2021
DELIVERED AT:  Hobart
HEARING DATES:  12, 13 October 2021
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Torts – Negligence – Other particular claimants, defendants and circumstances – Road accidents – Pedestrian accidents – Children – Child running across road into side of moving car – Driver travelling slowly but unable to avoid collision – Driver not negligent.

Civil Liability Act2002 (Tas), s 11.
Marien v Gardiner [2013] NSWCA 396, 66 MVR 1, referred to.
Aust Dig Torts [1308]

REPRESENTATION:

Counsel:
             Plaintiff:  P G J Zeeman
             Defendant:  K E Read SC, D W Symes
Solicitors:
             Plaintiff:  Murdoch Clarke
             Defendant:  Dobson Mitchell Allport

Judgment Number: [2021] TASSC 52
Number of paragraphs: 33

Serial No 52/2021
File No 689/2008

BREHANE GIDAY GIRMAY by his litigation guardian
Tsege Gebregiorgis Behre v JASON VIVIAN GREEN,

REASONS FOR JUDGMENT BLOW CJ

4 November 2021

This is an action for damages for personal injuries resulting from a motor vehicle accident. At about 2.10pm on 9 September 2005 the plaintiff, Brehane Girmay, was crossing Albert Road in Moonah on foot when he was involved in a car accident and suffered catastrophic head injuries. By agreement, the action has proceeded to trial only in relation to the issues relating to liability. The quantum of the plaintiff's claim has been agreed, subject to Court approval, the plaintiff being under a disability.
The plaintiff is a member of an Ethiopian family. Not long before the day of the accident, he and his family moved into a house in Central Avenue, Moonah, around the corner from Albert Road. On the day in question, it appears that he was 12 years old, although I was told that there was no reliable record of his date of birth. He had been taken to some shops by two male family friends in a car. They drove him back towards his home, heading west along Albert Road. The driver crossed Central Avenue and then stopped the vehicle opposite the Olympic Takeaway shop, which was at 96 Albert Road, on the corner of Central Avenue. The plaintiff was in the back seat. He got out of the car through the left rear door, went around the rear of the car, and commenced to cross Albert Road, heading towards the shop. His home was beyond the shop, three doors up from it in Central Avenue.
At the same time the defendant, Jason Green, was driving his mother's blue Toyota Corolla sedan east along Albert Road towards its intersection with Central Avenue. There was a collision between that vehicle and the plaintiff. He fell backwards onto the roadway, hit his head, and suffered permanent brain damage.
The collision occurred on a long straight section of Albert Road. The defendant was travelling…

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 Girmay v Green

Details

AGLC: Girmay v Green [2021] TASSC 52
Case: [2021] TASSC 52
Decision Date: 4 November 2021

CaseChat Overview and Summary

Girmay v Green involved a claim for damages following a road accident where a child ran into the side of a car being driven by the defendant. The plaintiff sought compensation for injuries sustained by their child. The case was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the driver of the car, Green, was negligent in the circumstances leading to the accident. The court considered whether a reasonable person in the driver's position would have taken different steps to avoid the collision, given that the child ran into the side of the car at a point where the driver was unable to see the child until the last moment.

The court found that the driver was not negligent. The evidence showed that the driver was travelling at a low speed, which is generally considered cautious behaviour in urban environments. Furthermore, the child's unexpected and sudden movement into the path of the car meant that there was no reasonable opportunity for the driver to avoid the collision. The court held that the driver's actions were consistent with those of a reasonable person under the circumstances.

Consequently, the court dismissed the plaintiff's claim, finding that the driver had not breached any duty of care owed to the child. As a result, the plaintiff's action was unsuccessful, and the court ordered the plaintiff to pay the defendant's costs.

Orders