Kigetzis v Roche - [2014] VSC 657

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2013 05513

BILL KIGETZIS	Plaintiff
v
JOEL ROCHE	Defendant

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JUDGE:	RUSH J
WHERE HELD:	Melbourne
DATE OF HEARING:	24, 25 and 26 November 2014
DATE OF JUDGMENT:	19 December 2014
CASE MAY BE CITED AS:	Kigetzis v Roche
MEDIUM NEUTRAL CITATION:	[2014] VSC 657

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NEGLIGENCE – Motor vehicle accident – Collision between motor vehicle and pedestrian at night – Duty of care – Whether defendant was negligent – Contributory negligence – Apportionment of liability.

DAMAGES – Plaintiff seeking damages against the defendant – Plaintiff suffered physical and psychiatric injuries – Whether award for past and future pecuniary loss should be a discounted or reduced to reflect the risk that the plaintiff would not have continued in his pre-accident employment – Employment prospects and drug use – Award of pain and suffering damages and pecuniary loss damages – Pecuniary loss damages discounted for vicissitudes – Damages discounted for contributory negligence - Malec v JC Hutton Pty Ltd (1990) 169 CLR 638.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J.P. Brett with Ms K.J. Moran	Arnold Thomas & Becker
For the Defendant	Mr J. Ruskin QC with Mr M.J. Hooper	Solicitor to the Transport Accident Commission

HIS HONOUR:

Introduction

Mr Bill Kigetzis, the plaintiff, is aged 36 years. On 6 August 2002, the plaintiff was walking across a pedestrian crossing at the intersection of Smith Street and Johnson Street, Collingwood, when he was struck by a vehicle driven by Mr Joel Roche, the defendant (the ‘Incident’). The plaintiff sustained severe injury as a result of the Incident. He claims his injury and loss was caused by the negligent driving of the defendant. The defendant counterclaims that, if he is found to be negligent, the plaintiff contributed to the cause of the Incident by his own negligence as a pedestrian.

The issue of liability is strongly contested. The defendant alleges the plaintiff walked across the intersection against a red light and that, in the circumstances, he could not have avoided the Incident. The plaintiff maintains the defendant was negligent by entering the intersection at a speed where he could not stop in an emergency, passing on the left hand side of two vehicles, a bus and a sedan motor vehicle, which were stationary at the intersection even though the lights facing those vehicles were green. The plaintiff contends that a reasonable driver in the defendant’s position would not have entered the intersection in such a manner, that the defendant’s negligence was a cause of the Incident.

Legal principles

It was, of course, not disputed on behalf of the defendant that as a driver on the roadway he owed a duty of care to other road users.

The content of the duty of care of a driver was referred to in Manley v Alexander (‘Manley’):

[T]he reasonable care that a driver must exercise when driving a vehicle on the road requires that the…

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 Kigetzis v Roche

Details

AGLC: Kigetzis v Roche [2014] VSC 657
Case: [2014] VSC 657
Decision Date: 19 December 2014

CaseChat Overview and Summary

In the case of Kigetzis v Roche, the plaintiff, Kigetzis, sought damages from the defendant, Roche, following a motor vehicle accident that occurred at night. Kigetzis was a pedestrian who was struck by Roche’s vehicle, resulting in physical and psychiatric injuries. The primary legal issues in this case were whether Roche was negligent in causing the accident and, if so, to what extent Kigetzis’s own actions contributed to the incident.

The court had to determine the extent of Roche’s duty of care and whether she breached this duty. It also needed to assess Kigetzis’s contributory negligence, considering his drug use and employment prospects at the time of the accident. In evaluating the damages, the court considered whether the award for past and future pecuniary loss should be reduced or discounted due to the risk that Kigetzis might not have continued in his employment. The court applied the principles set out in Malec v JC Hutton Pty Ltd, specifically focusing on the discounting of damages for contributory negligence and vicissitudes.

Upon reviewing the evidence, the court found Roche negligent in the operation of her vehicle and held her liable for the accident. However, Kigetzis’s contributory negligence was also established, and the court apportioned liability between the parties. The court determined that the damages for past and future pecuniary loss should be discounted to reflect the uncertainty regarding Kigetzis’s employment prospects. Additionally, the court applied a reduction to the damages award to account for Kigetzis’s contributory negligence and drug use. The final orders included a determination of damages for pain and suffering, reduced pecuniary loss, and apportionment of liability in accordance with the findings.

Orders