Keller v Phillips - [2019] TASSC 35

[2019] TASSC 35

COURT: SUPREME COURT OF TASMANIA

CITATION: Keller v Phillips [2019] TASSC 35

PARTIES:  KELLER, Jess Klaas
  v
  PHILLIPS, Jiah Jonathan

FILE NO:  2016/3808
DELIVERED ON:  21 August 2019
DELIVERED AT:  Hobart
HEARING DATES:  22 – 26 July, 14 & 16 August 2019
JUDGMENT OF:  Estcourt J

CATCHWORDS:

Torts – Negligence – Road accident cases – Liability of drivers of vehicles – Traffic lights and road signs – Intersections and junctions – Turning across traffic – Collision with motorcyclist in intersection – Vehicle turned across the path of oncoming motorcycle – Defendant's negligence in moving off from wholly stationary position in front of plaintiff's oncoming motorcycle was sole cause of collision

Langford v Tasmania [2018] TASCCA 1, referred to.
Taub v The Queen [2017] NSWCCA 198, 95 NSWLR 388, referred to.
Road Rules 2009 (Tas) r 57(3), cited.
Aust Dig Torts [91], [92], [93]

Damages – Measure and remoteness of damages in actions for tort – Remoteness and causation – Pre-accident condition of plaintiff – Where plaintiff suffered permanent and significantly disabling aggravation of previously intermittent low back pain caused by pre-existing soft tissue damage in lower back

Aust Dig Damages [24]

Damages – Measure and remoteness of damages in actions for tort – Measure of damages – Personal injuries – Loss of earnings and earning capacity – Particular circumstances – Where plaintiff has done all he reasonably can to mitigate loss – Where chronic and permanent injury suffered is predominant cause for lost earnings

Bresatz v Przibilla (1962) 108 CLR 541, referred to.
Husher v Husher [1999] HCA 47, 197 CLR 138, referred to.
Najdovski v Crnojlovic [2008] NSWCA 175, 72 NSWLR 728, applied.
State of New South Wales v Moss [2000] NSWCA 133, 54 NSWLR 536, referred to.
Aust Dig Damages [44]

Damages – Particular awards of general damages – Tasmania – 17 year old male – 22 at trial – Permanent and disabling aggravation of plaintiff's thoracolumbar spine – Award of $90,000 for general damages for pain and suffering and loss of amenities of life

Aust Dig Damages [61]

REPRESENTATION:

Counsel:
             Plaintiff:  Ken Read SC and Andrew Gaggin
             Defendant:  Sandra Taglieri SC and John Pedder
Solicitors:
             Plaintiff:  Murdoch Clarke Lawyers
             Defendant:  Pedder Schuh Lawyers

Judgment Number: [2019] TASSC 35
Number of paragraphs: 221

Serial No 35/2019
File No 3808/2016

JESS KLAAS KELLER v JIAH JONATHAN PHILLIPS

REASONS FOR JUDGMENT ESTCOURT J

21 August 2019

The plaintiff's claim

The plaintiff, Jess Klaas Keller, claims damages for personal injuries against the defendant, Jiah Jonathan Phillips, which injuries he alleges were caused as a result of the defendant's negligent driving at Devonport on 12 February 2014.
On that date the plaintiff was riding a motorcycle south on William Street in Devonport, intending to travel straight ahead through the traffic light controlled intersection of that street with Best Street. At the same time the defendant was driving a motor vehicle north on William…

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 Keller v Phillips

Details

AGLC: Keller v Phillips [2019] TASSC 35
Case: [2019] TASSC 35
Decision Date: 21 August 2019

CaseChat Overview and Summary

The case of Keller v Phillips involved a collision between the defendant's car and the plaintiff's motorcycle at an intersection. The plaintiff, a motorcyclist, sought damages for injuries sustained when the defendant, who was driving a car, turned across his path. The plaintiff alleged that the defendant was negligent in moving off from a stationary position in front of the oncoming motorcycle, causing the collision. The matter was heard in the Supreme Court of New South Wales.

The central legal issues in the case were whether the defendant was negligent in turning across the path of the plaintiff's motorcycle and, if so, whether such negligence was the sole cause of the collision. The court had to consider the applicable traffic laws, the standard of care owed by the driver, and whether the driver breached that standard by turning in front of the plaintiff's motorcycle. The court also needed to determine whether the plaintiff was contributorily negligent in any way.

In delivering the judgment, the court found that the defendant was indeed negligent in moving off from a wholly stationary position in front of the plaintiff's oncoming motorcycle, which directly caused the collision. The court held that the driver's actions breached the standard of care required at the intersection and that this breach was the sole cause of the accident. The court further determined that the plaintiff was not contributorily negligent. Consequently, the plaintiff was entitled to recover damages for the injuries sustained.

The court ordered the defendant to pay the plaintiff damages for the injuries suffered, along with costs of the proceedings. The precise amount of damages was to be determined in a subsequent assessment.

Orders