Ibrahim v Davis - [2013] VSCA 238

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0180
SONIA IBRAHIM	Appellant
v
PETER DAVIS	Respondent

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JUDGES	MAXWELL P, BONGIORNO JA and ROBSON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	22 August 2013
DATE OF JUDGMENT	10 September 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 238
JUDGMENT APPEALED FROM	Ibrahim v Davis (Unreported, County Court of Victoria, Judge O’Neill, 3 September 2012)

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TORT – NEGLIGENCE – Jury trial – Motor vehicle accident – Verdict for defendant – Whether verdict open to jury on evidence most favourable to defendant – Whether jury bound to find in favour of plaintiff – Verdict in favour of defendant was open to jury on evidence adduced – Appeal dismissed.

TORT – NEGLIGENCE – Jury trial – Motor vehicle accident – Duty of care – Jury directions – Whether judge erred in directions as to existence and scope of relevant duty – Neindorf v Junkovic (2005) 80 ALJR 341; Vairy v Wyong Shire Council (2005) 223 CLR 422; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; Wyong Shire Council v Shirt (1980) 146 CLR 40, applied – Jury directions appropriate – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr R P Gorton QC with Mr R B Harper	Adviceline Injury Lawyers
For the Respondent	Mr J Ruskin QC with Ms B Y Knoester	Transport Accident Commission

MAXWELL P

BONGIORNO JA
ROBSON AJA:

Ms Sonia Ibrahim was born on 22 April 1986 to Italian born migrant parents who lived in Preston. On 4 October 1988 she was being pushed in a stroller by her mother on a shopping trip in Edwardes Street, Preston near its ‘T’ intersection with Spring Street. As her mother pushed the stroller in a generally southerly direction across Edwardes Street at that corner the stroller came into contact with a very large 1981 Kenworth semi-trailer driven by Peter Davis.

As a result of the accident Ms Ibrahim was injured. She was treated appropriately at hospital and appeared to recover. However, many years later, she began to suffer gynaecological, psychological and associated problems said to be the long term sequelae of the accident. By a Writ filed on 12 September 2011 Ms Ibrahim sought damages for those injuries from Mr Davis, claiming that the accident in which she was injured was caused by his negligence.

Following a trial before a jury in the County Court, on 3 September 2012 Ms Ibrahim’s claim was rejected, the jury having found that there was no negligence on the part of Mr Davis which was a cause of Ms Ibrahim’s injuries. From that verdict and the subsequent judgment of the County Court entered in accordance with it, Ms Ibrahim now appeals.

Although her Notice of Appeal contains six numbered grounds, counsel at the hearing in this Court conceded that there were, in effect, only two. They may be restated as follows:

Grounds 1 to 4: That the jury verdict was perverse; on the evidence, they were…

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 Ibrahim v Davis

Details

AGLC: Ibrahim v Davis [2013] VSCA 238
Case: [2013] VSCA 238
Decision Date: 10 September 2013

CaseChat Overview and Summary

In the case of Ibrahim v Davis, the plaintiff sought damages from the defendant for injuries sustained in a motor vehicle accident. The matter was tried before a jury, which returned a verdict in favour of the defendant. The plaintiff appealed the decision on several grounds. Firstly, the plaintiff argued that the verdict was not open to the jury based on the evidence presented, and that the jury was required to find in favour of the plaintiff. Secondly, the plaintiff contended that the trial judge had erred in the directions given to the jury concerning the existence and scope of the relevant duty of care. The court was required to determine whether the verdict was open to the jury on the evidence, and whether the jury directions regarding the duty of care were appropriate.

The court found that the verdict was open to the jury on the evidence presented. The court held that it was not bound to accept the plaintiff's contention that the jury was required to find in their favour, and that the jury was entitled to consider the evidence in its entirety and make a determination based on the weight of the evidence. The court also considered the jury directions regarding the duty of care, and found that they were appropriate in light of the authorities cited by the parties. The court found no error in the judge's directions, and held that the jury was properly guided as to the existence and scope of the relevant duty of care.

Accordingly, the appeal was dismissed. The court held that the verdict was open to the jury on the evidence, and that the jury directions were appropriate. The court found no error in the trial judge's handling of the case, and the appeal was accordingly dismissed. The parties were to bear their own costs of the appeal.

Orders