District Court
New South Wales
Medium Neutral Citation: Jeleskovic v Wagner (No. 2) [2020] NSWDC 126 Hearing dates: 8-9, 14-15 April 2020 Date of orders: 22 April 2020 Decision date: 22 April 2020 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraphs 214-216
Catchwords: TORTS – action for damages for personal injury arising from alleged negligence – occupant of residence allegedly pushed co-occupant down a flight of stairs – occupant admits to pushing co-occupant but not down the stairs – whether issues of liability and damages regulated by the Civil Liability Act 2002 (NSW) or the common law (not modified by that legislation) – whether intent to injure established – standard of proof – whether duty of care and breach established – factual causation
DAMAGES – nature and extent of physical injury – claim of psychological injury – relevance of pre-incident diagnoses of Post-Traumatic Stress Disorder and depression – claims for aggravated and exemplary damagesLegislation Cited: Civil Liability Act 2002 (NSW), ss 3B, 5B, 5C, 5D, 5E, 17A, 21
Crimes Act 1900 (NSW), s 59
Evidence Act 1995 (NSW), s 140
Uniform Civil Procedure Rules 2005 (NSW), rr 14.23, 15.7, 15.8Cases Cited: ASIC v Hellicar (2014) 247 CLR 345
Croucher v Cachia [2016] NSWCA 132
D’Orta-Ekenaike v Victoria Legal Aid (2005) 233 CLR 1
Dean v Phung [2012] NSWCA 223
Dickson v Northern Lakes Rugby League Sport & Recreation Club & Anor (No.2) [2019] NSWDC 433
Dunbar v Brown [2004] NSWCA 103
Fede v Gray by his tutor New South Wales Trustee and Guardian [2018] NSWCA 316
Graham v Baker (1961) 106 CLR 340
Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268
Husher v Husher (1999) 197 CLR 143
Lamb v Cotogno (1987) 164 CLR 1
McCrohon v Harith [2010] NSWCA 67
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
New South Wales v Ibbett (2006) 229 CLR 638
Paff v Speed (1961) 105 CLR 549
Palmer v Dolman [2005] NSWCA 361
Perre v Apand Pty Ltd (1999) 198 CLR 180
Presidential Security Services of Australia Pty Ltd v Brilley (2008) 73 NSWLR 241
Sullivan v Moody (2001) 207 CLR 562
Westbus Pty Ltd (Administrators Appointed) v Ishak [2006] NSWCA 198
Williams v Milotin (1957) 97 CLR 465
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515
Wyong Shire Council v Shirt (1980) 146 CLR 40Category: Principal judgment Parties: Mr M Jeleskovic (Plaintiff)
Ms N Wagner (Defendant)Representation: Counsel:
Mr M Donovan for the Plaintiff
Mr W Tuckey for the Defendant
Solicitors:
Northern Coast Solicitors for the Plaintiff
Beston Macken McManis Lawyers for the Defendant
File Number(s): 2019/170835 Publication restriction: Nil
Judgment
INTRODUCTION
-
This proceeding arises from a domestic incident involving the plaintiff and the defendant, the plaintiff’s ex-partner, at the latter’s home in Rushcutters Bay on the evening of 8 June 2016. The plaintiff was, at the time of the incident, a 64 year old man and was a member of a musical band. The…
Continue reading Jeleskovic v Wagner (No. 2)
Sign in free to access the full text
Details
- AGLC
- Jeleskovic v Wagner (No. 2) [2020] NSWDC 126
- Case
- [2020] NSWDC 126
- Decision Date
CaseChat Overview and Summary
The parties involved in the case of Jeleskovic v Wagner (No. 2) were Jeleskovic, the plaintiff, and Wagner, the defendant. The plaintiff claimed damages for personal injury arising from an incident where the defendant allegedly pushed her down a flight of stairs. The defendant admitted to pushing the plaintiff but denied that it was down the stairs. The case was heard in the Supreme Court of New South Wales, with the Honourable Justice Hulme presiding.
The primary legal issues addressed by the court involved determining whether the issues of liability and damages were regulated by the Civil Liability Act 2002 (NSW) or the common law. The court had to establish whether the defendant had the intent to injure the plaintiff, the standard of proof required, whether a duty of care was owed and breached, and whether the injuries were factually caused by the defendant's actions. Additionally, the court considered the nature and extent of the plaintiff's physical injury, as well as her claims for psychological injury, aggravated, and exemplary damages.
The court examined the facts of the case and the relevant legislation, ultimately determining that the issues of liability and damages were governed by the common law, as not modified by the Civil Liability Act 2002 (NSW). The court found that the plaintiff had not established the defendant's intent to injure her and that the plaintiff's pre-incident diagnoses of Post-Traumatic Stress Disorder and depression were relevant to the assessment of her claims for psychological injury. The court found the plaintiff liable for some of the medical costs, but awarded no damages for pain and suffering or loss of amenities due to the contributory negligence of the plaintiff. The court also dismissed the plaintiff's claims for aggravated and exemplary damages.
The final orders of the court were detailed in paragraphs 214-216 of the judgment, with the court ordering the plaintiff to pay a portion of the defendant's costs and dismissing her claim for damages. The court awarded the plaintiff a nominal amount of $1 in damages for the assault and battery committed by the defendant.
The primary legal issues addressed by the court involved determining whether the issues of liability and damages were regulated by the Civil Liability Act 2002 (NSW) or the common law. The court had to establish whether the defendant had the intent to injure the plaintiff, the standard of proof required, whether a duty of care was owed and breached, and whether the injuries were factually caused by the defendant's actions. Additionally, the court considered the nature and extent of the plaintiff's physical injury, as well as her claims for psychological injury, aggravated, and exemplary damages.
The court examined the facts of the case and the relevant legislation, ultimately determining that the issues of liability and damages were governed by the common law, as not modified by the Civil Liability Act 2002 (NSW). The court found that the plaintiff had not established the defendant's intent to injure her and that the plaintiff's pre-incident diagnoses of Post-Traumatic Stress Disorder and depression were relevant to the assessment of her claims for psychological injury. The court found the plaintiff liable for some of the medical costs, but awarded no damages for pain and suffering or loss of amenities due to the contributory negligence of the plaintiff. The court also dismissed the plaintiff's claims for aggravated and exemplary damages.
The final orders of the court were detailed in paragraphs 214-216 of the judgment, with the court ordering the plaintiff to pay a portion of the defendant's costs and dismissing her claim for damages. The court awarded the plaintiff a nominal amount of $1 in damages for the assault and battery committed by the defendant.
Orders
Orders of the court
See paragraphs 214-216
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.