Kilani v Aluabaid - [2021] ACTSC 90

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Kilani v Aluabaid
Citation:	[2021] ACTSC 90
Hearing Dates:	10 May 2021 – 12 May 2021
Decision Date:	14 May 2021
Before:	Elkaim J
Decision:	See [108]
Catchwords:	CIVIL LAW – NEGLIGENCE – Motor Vehicle Accident – Stolen vehicle – onus of proof – attack on plaintiff’s credit
Legislation Cited:	Court Procedures Rules 2006 (ACT), r 407
Cases Cited:	Nguyen v Tran [2018] NSWCA 215 Jones v Dunkel [1959] HCA 8; 101 CLR 298
Parties:	Adam Kilani (Plaintiff) Nashaat Hamid Aluabaid (First Defendant)
Transport Accident Commission – Victoria (Second Defendant)
Representation:	Counsel
W Sharwood (Plaintiff)
W Fitzsimmons SC (First and Second Defendant)
Solicitors
Gabbedy Milson Lee (Plaintiff)
Moray & Agnew Lawyers (First and Second Defendant)
File Number:	SC 227 of 2020
ELKAIM J:
Background

1.       The plaintiff is suing the defendants for damages arising from injuries he suffered in a motor vehicle accident on 8 October 2018. The offending vehicle was owned by the first defendant and insured by the second defendant. The driver was apparently a thief who had stolen the vehicle the day before. Despite this, the defendants remain
liable for the driver’s actions.
2.       The plaintiff was born in Iraq 1984. After spending some time in Jordan he came to Australia in 2006. His father was already living here. The plaintiff first spent some time in Sydney and then moved to Canberra in 2007. He performed assorted types of employment including being a cleaner, working part-time in a restaurant and working at the Saudi Arabian Embassy in an administrative position.
3.       In 2010 the plaintiff returned to Iraq for about six months. While in Iraq he was married. He returned to Australia in 2011 and initially spent about a year in Sydney. He then returned to Canberra with his wife. They now have two children.
4.       The plaintiff, in about 2016, started to work for a man called Saran who ran a business called Precision Painting. The nature of the business was to contract for and perform painting work.
5.       In December 2017 the plaintiff bought the business from Saran. The business came with an office, some tools and a motor vehicle.
6.       The plaintiff was healthy prior to the accident. The damages he alleges fall under the heads of general damages, past and future economic loss, past and future domestic care and medical expenses. Prior to the hearing commencing, the parties agreed on future economic loss and past and future domestic assistance.
7.       The plaintiff’s alleged injuries relate to his low back and his right shoulder. The

defendants challenged the extent of his injuries and also raised a causation issue in
respect of the right shoulder.
8.       The defendants put the plaintiff to strict proof of his claim. According to the

defendants the plaintiff’s credit was of such little worth that he could not “be believed
on anything he says” (Transcript page 134).
9.       This attitude to the plaintiff’s claim extended to liability. What was an…

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 Kilani v Aluabaid

Details

AGLC: Kilani v Aluabaid [2021] ACTSC 90
Case: [2021] ACTSC 90
Decision Date

CaseChat Overview and Summary

The case of Kilani v Aluabaid before the Supreme Court of the Australian Capital Territory concerns a claim for damages arising from a motor vehicle accident. The plaintiff, Adam Kilani, was rear-ended by a stolen vehicle owned by the first defendant, Nashaat Hamid Aluabaid, and insured by the second defendant, Transport Accident Commission – Victoria. The court had to decide on the liability of the defendants and the extent of the plaintiff's injuries and damages. The primary issues were whether the accident occurred as alleged, the extent of the plaintiff's injuries, and the credibility of the plaintiff's evidence regarding his economic loss. The defendants argued that the plaintiff's credit was so poor that his evidence could not be believed, and they questioned the extent of his injuries and economic loss. The court found that the accident did occur as the plaintiff described, despite the speculative and technical criticisms of his evidence. The plaintiff was found to have suffered injuries to his low back and right shoulder, which were consistent with the accident. The court also accepted that the plaintiff had suffered some economic loss, albeit less than claimed. The total awarded in damages was $181,500, including general damages, interest, past and future medical expenses, past economic loss, and past and future domestic assistance. The court ordered the defendants to pay the plaintiff's costs of the proceedings, with leave to request a different costs order.

Orders