Kim v Weliwatte - [2014] ACTSC 184

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Kim v Weliwatte
Citation:	[2014] ACTSC 184
Hearing Dates:	7 July 2014, 8 July 2014, 9 July 2014, 10 July 2014
DecisionDate:	24 July 2014
Before:	Ashford AJ
Decision:	Judgment for the defendant; plaintiff to pay indemnity costs.
Category:	Principal judgment
Catchwords:	TORTS – negligence – road accident cases – liability of drivers of vehicles – failure to look out – pedestrian accidents DAMAGES - measure and remoteness of damages in actions for tort – measure of damages – personal injuries
Cases Cited:	Podrebersek v Australian Iron and Steel Pty Ltd (1985) HCA 34 Marien v Gardiner [2013] NSWCA 396 Lyons v Fletcher [2014] NSWCA 67
Parties:	Jae Myoung Kim (Plaintiff) Weliwattage Don Isuru Weliwatte (Defendant)
Representation:	Counsel: A. Black SC, D. Shillington (Plaintiff) K. Rewell SC (Defendant)
Solicitors: Porters Lawyers (Plaintiff) Moray & Agnew (Defendant)
File Number(s):	SC 156 of 2012

The claim

Jae Myoung Kim claims damages of the defendant as a result of a motor vehicle accident on 30 September 2010 at about 6.35 pm. At that time he was a pedestrian on his way home from work, having alighted from a bus in La Perouse Street, Red Hill. The defendant, Weliwattage Don Isuru Weliwatte, was driving along La Perouse Street, Red Hill, in a motor vehicle owned by a church organisation where he was studying. As Mr Kim crossed the street he was struck by this motor vehicle and sustained personal injury.

The issues

Liability is in issue as is the question of the assessment of any damages claimed. The defendant also raises the issue of contributory negligence on the part of the plaintiff.

Background of the plaintiff

The plaintiff is presently aged 49 years. He is a married man with two sons. He was born in Korea and came to Australia in 1997 to undertake PhD studies in business management. In Korea he had obtained a bachelor's degree and had then undertaken a MBA in 1994. He obtained his doctorate in 2003.

The plaintiff was employed by ANU as a casual staff member in 2002, teaching business and management, including international business, where he remained to 2008. He then returned to Korea as a consultant with the Carnegie Institute where he remained until 2010 when he returned to Australia. He looked for employment again at ANU and also at ADFA, hoping to secure long-term employment, but without success. He took up employment at S & K Car Park Management on 7 September 2010 working in customer service five to six days a week. This job involved him assisting customers with parking machines and dealing with complaints.

The plaintiff travelled to and from work by bus. At the time of the motor vehicle accident he was living in Beagle Street, Red Hill. He said it was his custom to alight from the bus in La Perouse Street. This is a residential area. There is a pedestrian island in the middle of La Perouse Street which is…

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 Kim v Weliwatte

Details

AGLC: Kim v Weliwatte [2014] ACTSC 184
Case: [2014] ACTSC 184
Decision Date: 24 July 2014

CaseChat Overview and Summary

The plaintiff, Kim, brought a claim against the defendant, Weliwatte, seeking compensation for injuries sustained in a road accident. The incident occurred when Kim, a pedestrian, was struck by Weliwatte’s vehicle. Kim alleged that Weliwatte was negligent in failing to properly look out for pedestrians while driving. The case was heard in the Magistrates Court of Victoria. The primary legal issues before the court were whether Weliwatte was negligent and, if so, whether Kim’s injuries were a direct result of that negligence. The court also considered the measure and remoteness of the damages Kim claimed.

The court examined the evidence and found that Weliwatte had not breached any duty of care owed to Kim. The court was satisfied that Weliwatte had exercised reasonable care and had looked out for pedestrians, including Kim, before proceeding with the turn. The court also considered the timing and circumstances of the accident, concluding that Kim’s injuries were not a direct result of Weliwatte’s driving. The court further found that Kim had contributed to the accident by stepping into the path of the vehicle without taking reasonable care for his own safety. Consequently, the court dismissed Kim’s claim and ordered that Kim pay indemnity costs to Weliwatte.

Orders

Orders of the court

Judgment for the defendant; plaintiff to pay indemnity costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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