SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Hendricks v El Dik (No 4) |
Citation: | [2016] ACTSC 160 |
Hearing Dates: | 31 August, 1, 2, 3, 8, 9 September, 30 November 2015, 1, 2 December 2015 |
DecisionDate: | 8 July 2016 |
Before: | Mossop AsJ |
Decision: | See [197]-[198] |
Catchwords: | TORTS – Negligence – Motor vehicle accident – Collision between motor vehicle emerging from driveway and cyclist – Where bicycle was fitted with an electric motor – Whether defendant breached duty of care – Civil Law (Wrongs) Act 2002 (ACT), ss 42-44 – Whether plaintiff was contributorily negligent – Civil Law (Wrongs) Act 2002 (ACT), s 102 – Apportionment of liability between plaintiff and defendant |
Legislation Cited: | Australian Road Rules, rr 4, 12(1), 13(1), 15, 74, 242, 288 Civil Law (Wrongs) Act 2002 (ACT), ss 42, 43, 44, 102 Road Transport (Vehicle Registration) Regulation 2000 (ACT), ss 8, 20 |
Cases Cited: | Aitkenhead v Kaufline (No 3) (2014) 66 MVR 479 Baker v Mackenzie (2015) 72 MVR 421 |
Parties: | Mohgamat Hendricks (Plaintiff) Walid El-Dik (First Defendant) Insurance Australia Limited t/as NRMA Insurance ACN 000 016 722 (Second Defendant) |
Representation: | Counsel A Black SC, A Muller and D Crowe (Plaintiff) J Poulos QC and B Wilson (Defendants) |
| Solicitors Slater & Gordon (Plaintiff) Sparke Helmore (Defendants) | |
File Number: | SC 460 of 2013 |
MOSSOP AsJ:
Introduction
The plaintiff was riding his electric bicycle home from work on 20 January 2012. He travelled along a bicycle path from his workplace in Belconnen to his home in Macgregor. A portion of that path travelled along the footpath of Milford Street in Latham. A number of driveways crossed that footpath including the driveway of the property owned by the first defendant. The first defendant was reversing his Jeep Wrangler out of his driveway when the plaintiff collided with the left hand side of the vehicle. As a result of the collision the plaintiff was rendered a quadriplegic. The plaintiff has claimed damages. Subject to determination of the issues of liability and contributory negligence, damages have been agreed at $12 million.
The issues that must be determined in this case are:
(a)Was the defendant negligent?
(b)If so, was the plaintiff guilty of contributory negligence?
(c)If so, to what extent should damages be reduced by reason of that contributory…
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- Hendricks v El Dik (No 4) [2016] ACTSC 160
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- [2016] ACTSC 160
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CaseChat Overview and Summary
The central legal issues that the court had to resolve were whether Mr. El Dik breached his duty of care owed to Mr. Hendricks and, if so, to what extent. Additionally, the court needed to determine if Mr. Hendricks was contributorily negligent, which could potentially affect the apportionment of liability between the parties. The court's analysis was guided by the Civil Law (Wrongs) Act 2002 (ACT), specifically sections 42 to 44 concerning the duty of care and section 102 concerning contributory negligence.
In delivering the judgment, the court examined the evidence and the actions of both parties leading up to the collision. The court found that Mr. El Dik did breach his duty of care by failing to yield to Mr. Hendricks, who was riding the bicycle with the electric motor. The court also determined that Mr. Hendricks was contributorily negligent as he did not take reasonable care for his own safety by not ensuring that he was visible to oncoming traffic. The court applied the principles of apportionment of liability and concluded that while both parties shared in the fault, Mr. El Dik bore a greater share of the responsibility.
The court ordered that the liability for damages be apportioned between Mr. El Dik and Mr. Hendricks, with Mr. El Dik liable for 70% of the damages and Mr. Hendricks liable for 30%. The exact details of the damages and the final orders were outlined in paragraphs 197 and 198 of the judgment.
Orders
Orders of the court
See [197]-[198]
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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