Ilievski v Zhou - [2015] VSC 158

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2011 06256

ROBERT ILIEVSKI	Plaintiff
v
YINGZHI ZHOU	Defendant

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	20, 21, 24, 25, 26, 27, 28 November 2014, 28 January 2015
DATE OF JUDGMENT:	7 May 2015
CASE MAY BE CITED AS:	Ilievski v Zhou
MEDIUM NEUTRAL CITATION:	[2015] VSC 158

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TRANSPORT ACCIDENT – Negligence – Contributory negligence – Assessment of Damages – Credibility of witnesses – Proceeding dismissed.

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APPEARANCES:

Counsel

Solicitors

For the Plaintiff

In person

Mr A Mukherjee
(28 January 2015)

Barretts Solicitors
(28 January 2015)

For the Defendant

Ms R Annesley QC and
Mr P Bourke

Solicitor for the Transport Accident Commission

HIS HONOUR:

Introduction

On Friday 31 October 2008, at approximately 9.40am, Mr Ilievski endeavoured to run across Grimshaw Street, Watsonia in the face of oncoming traffic. He was struck by a vehicle driven by Ms Zhou, the defendant. Many of the circumstances surrounding the accident are in dispute. However, it was clear, beyond argument, that the impact between Ms Zhou’s vehicle and Mr Ilievski resulted in him being hospitalised for five days. Mr Ilievski alleges that he continues to suffer from injuries he sustained in the accident.

Both Mr Ilievski and Ms Zhou gave differing versions of the collision, neither of which was entirely credible – particularly that given by Mr Ilievski. Fortunately, there were two independent witnesses to the accident whose evidence, whilst not totally consistent, assists considerably in determining what occurred that morning.

Not only was liability hotly contested, but the consequences of the accident were also the subject of debate. First, Ms Zhou contended that Mr Ilievski had a major pre-existing heroin addiction which, rather than his transport accident, was his primary difficulty in terms of obtaining employment. Second, it was said that the alleged significant disability in Mr Ilievski’s right hip caused by the collision was the result of a pre-existing condition, and if any disability was related to the collision it was only slight, and of no consequence.

Mr Ilievski represented himself at the trial. He did a satisfactory job in presenting the evidence to support his case. For final submissions, he was represented by Mr Mukherjee of counsel, who was of great assistance. Nonetheless, I have found that Mr Ilievski has not established that Ms Zhou drove her car negligently and, for the reasons that follow, Mr Ilievski’s proceeding must be dismissed.

The trial

On the question of liability, Mr Ilievski gave evidence in support of his case. He also called his mother, Zora Ilievski, and Ms Kylie Critsilis, who witnessed the accident from her home.

Ms Zhou gave evidence by videolink from London. She called three witnesses: Dr Jonathan Watmuff and Craig Schenk (who both witnessed the collision), and Senior Constable John Collins (who attended the scene after the collision). Senior Constable Collins later produced an audio file containing his interview with

Ms Zhou at the scene of the accident.[1]

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 Ilievski v Zhou

Details

AGLC: Ilievski v Zhou [2015] VSC 158
Case: [2015] VSC 158
Decision Date: 7 May 2015

CaseChat Overview and Summary

The case of Ilievski v Zhou involved a dispute between the plaintiff, Ilievski, and the defendant, Zhou, arising from a transport accident. Ilievski, the plaintiff, sought damages for injuries sustained in the accident, which he alleged were caused by Zhou's negligence. Zhou, the defendant, denied the allegations and argued that any damages were due to the plaintiff's own contributory negligence. The matter was heard in the Supreme Court of Victoria. The plaintiff contended that Zhou's negligence in the operation of the vehicle directly caused his injuries, while Zhou argued that Ilievski's own actions contributed to the severity of his injuries. The court was required to determine whether Zhou was negligent, the extent of any contributory negligence on the part of Ilievski, and the appropriate assessment of damages.

The court examined the evidence presented by both parties, including witness testimonies and expert opinions, to assess the credibility and reliability of the claims made. It carefully considered the conduct of both parties leading up to and during the accident. In its analysis, the court applied the principles of negligence and contributory negligence, assessing whether Zhou breached a duty of care owed to Ilievski and whether Ilievski's own actions contributed to the harm suffered. The court also considered the impact of any contributory negligence on the calculation of damages.

After thorough deliberation, the court found that Ilievski had not proven that Zhou's negligence was the primary cause of his injuries. The court determined that Ilievski's own actions played a significant role in the accident and the extent of his injuries. Consequently, the court held that the proceeding should be dismissed in its entirety. The court found that Ilievski's claims were unsubstantiated and that his own contributory negligence precluded him from recovering any damages. The decision underscored the importance of the principles of contributory negligence and the need for a plaintiff to prove both the defendant's negligence and the absence of any contributory negligence on their own part.

Orders