Lappan v Seetoo - [2010] NSWDC 134

CITATION: Lappan v Seetoo [2010] NSWDC 134

HEARING DATE(S): 10, 11 and 12 May 2010

JUDGMENT DATE:
20 May 2010

JURISDICTION: Civil jurisdiction

JUDGMENT OF: Johnstone DCJ

DECISION: 1. Judgment for the defendant.
2. The plaintiff is to pay the defendant’s costs, on the ordinary basis.
3. Leave to apply within 14 days for some other costs order.

CATCHWORDS: MOTOR ACCIDENT - claim in negligence by a pedestrian against the driver of a motor vehicle - whether defendant’s car collided with the plaintiff causing him to fall - whether the driver was negligent and if so, whether there was contributory negligence - DAMAGES - causation as between incident and pre-existing back conditions

LEGISLATION CITED: Motor Accidents Compensation Act 1999
Workers Compensation Act 1987
Civil Liability Act 2002

CASES CITED: Tarabay v Leite [2008] NSWCA 259

PARTIES: Michael Lappan (Plaintiff)
Catherine Seetoo (Defendant)

FILE NUMBER(S): 09/334855

COUNSEL: Mr R Goodridge (Plaintiff)
Mr D Toomey (Defendant)

SOLICITORS: Firths (Plaintiff)
McLachlan Chilton (Defendant)

REASONS FOR JUDGMENT

The proceedings and the issues

1. The plaintiff, Michael Lappan, alleges that on 1 May 2006 he was a pedestrian crossing a street when a car driven by the defendant collided with him, causing him to lose his balance and fall, resulting in injuries, in particular an injury to his back. He alleges negligence and seeks compensatory damages.

2. The defendant denies that her car collided with the plaintiff and denies that his fall was caused by her, as a result of any negligence or at all.

3. The principal issues for determination in relation to liability are:

· Did the defendant’s car collide with the plaintiff?
· Was the defendant negligent?
· Was the plaintiff guilty of contributory negligence?
· If so, by what proportion should any damages be reduced?

The plaintiff’s case

4. The incident occurred at about 6.45 pm on the evening of 1 May 2006 on Ormonde Parade outside the Hurstville Railway Station. It was dark. There were three lanes. The lane closest to the station was a bus lane. The middle lane was a one-way traffic lane. The third lane was a parking lane. The defendant had stopped her car in the bus lane where she had picked up her daughter, and was preparing to move out of that lane into the centre one-way traffic lane. The plaintiff was crossing Ormonde Parade from the other side towards the station entrance. There was no pedestrian crossing at that point, the nearest crossing being some 50m away.

5. The plaintiff gave evidence to the effect that he was three-quarters of the way across Ormonde Parade when the defendant’s car collided with him, in the bus lane, as it started to pull out from the kerb. He said he was bumped by the car on the left side of his body, down around the knee area, lost his balance and fell to the ground. When cross-examined he said he was hobbling across the street, at a slight angle, due to pain in his back and…

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 Lappan v Seetoo

Details

AGLC: Lappan v Seetoo [2010] NSWDC 134
Case: [2010] NSWDC 134
Decision Date: 20 May 2010

CaseChat Overview and Summary

In the matter of Lappan v Seetoo, the plaintiff, Lappan, filed a claim against the defendant, Seetoo, alleging that the defendant's car collided with him, causing him to fall and resulting in injuries. The plaintiff sought damages for the injuries sustained. The case was heard in the court, where the primary issue was whether the defendant's car had collided with the plaintiff, leading to the injuries claimed. Additionally, the court needed to determine whether the defendant was negligent and if so, whether the plaintiff had contributed to the negligence.

The court examined the evidence presented by both parties to establish if there was a collision between the defendant's car and the plaintiff. It was determined that there was insufficient evidence to conclusively establish that the defendant's car collided with the plaintiff. Furthermore, the court found that even if there had been a collision, the injuries claimed by the plaintiff were not caused by the alleged collision but were instead the result of the plaintiff's pre-existing back conditions. The court found that the plaintiff had not demonstrated that the defendant's negligence, if any, was a cause of the injuries.

Consequently, the court ruled in favor of the defendant, finding that the plaintiff had failed to prove that the defendant's car had collided with him or that any injuries sustained were caused by the defendant's negligence. The plaintiff's claim was dismissed. The court ordered that the plaintiff pay the defendant's costs on the ordinary basis and granted leave for the plaintiff to apply within 14 days for some other costs order.

Orders

Orders of the court

1. Judgment for the defendant.

2. The plaintiff is to pay the defendant’s costs, on the ordinary basis.

3. Leave to apply within 14 days for some other costs order.

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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CITATION:	Lappan v Seetoo [2010] NSWDC 134
HEARING DATE(S):	10, 11 and 12 May 2010
JUDGMENT DATE:	20 May 2010
JURISDICTION:	Civil jurisdiction
JUDGMENT OF:	Johnstone DCJ
DECISION:	1. Judgment for the defendant. 2. The plaintiff is to pay the defendant’s costs, on the ordinary basis. 3. Leave to apply within 14 days for some other costs order.
CATCHWORDS:	MOTOR ACCIDENT - claim in negligence by a pedestrian against the driver of a motor vehicle - whether defendant’s car collided with the plaintiff causing him to fall - whether the driver was negligent and if so, whether there was contributory negligence - DAMAGES - causation as between incident and pre-existing back conditions
LEGISLATION CITED:	Motor Accidents Compensation Act 1999 Workers Compensation Act 1987 Civil Liability Act 2002
CASES CITED:	Tarabay v Leite [2008] NSWCA 259
PARTIES:	Michael Lappan (Plaintiff) Catherine Seetoo (Defendant)
FILE NUMBER(S):	09/334855
COUNSEL:	Mr R Goodridge (Plaintiff) Mr D Toomey (Defendant)
SOLICITORS:	Firths (Plaintiff) McLachlan Chilton (Defendant)