Leapai v Flegg

Case [2020] ACTMC 19

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Leapai v Flegg & Ors

Citation:

[2020] ACTMC 19

Hearing Date(s):

18 – 20 November 2019

DecisionDate:

4 September 2020

Before:

Magistrate Stewart

Decision:

See [251].

Catchwords:

CIVIL LAW – PERSONAL INJURY – DAMAGES - car and bicycle collision – whether defendants breached their duty of care to the plaintiff – learner driver and instructor – failure to keep proper lookout - calculation of damages – claim of contributory negligence - contributory negligence of children
Legislation Cited:

Civil Law (Wrongs) Act 2002 (ACT) ss42, 43, 45, 46, 102

Evidence Act 2011 (ACT) ss136

Cases Cited:

Browne v Dunn (1893) 6 R 67

Evers v Bennett (1982) 31 SASR 228

Goldsmith v Bisset (No 3) [2015] NSWSC 634

Griffiths v Kerkemeyer [1977] HCA 45; CLR 161; 51 ALJR; 15 ALR 387

Johnson v Hahn (Unreported) Supreme Court of South Australia 153 of 1979.

Jones v Dunkel (1959) 101 CLR 298

Lee v McGrath [2018] ACTSC 173

Lynch v Nurdin [1841] EngR 52; (1941) 1 QB 29 (113 ER 1041)

McHale v Watson (1964) 111 CLR 384

Nouri v Australian Capital Territory [2018] ACTSC 275

Pennington v Norris (1956) 96 CLR 10

Pollard-Lonergan v Goodman [2000] SADC 110 (31 August 2000)

Seseljia v Reardon [2020] ACTSC 167

Verryt v Schoup [2015] NSWCA 128

Warren v Coombs & Anor (1979) 142 CLR 531

Parties:

Ron Leapai (Plaintiff)

Tian Flegg (1st Defendant)

Yasir Khan (2nd Defendant)

Insurance Australia Limited Trading (3rd Defendant)

Representation:

Counsel

Mr Muller (Plaintiff)

Mr Fitzsimmons SC (Defendants)

Solicitors

Maliganis Edwards Johnson (Plaintiff)

HWL Ebsworth Lawyers (Defendants)

File Number(s):

CS 262 of 2018

MAGISTRATE STEWART:

Introduction

  1. The plaintiff, Ron Leapai, claims that as a 17-year-old he suffered physical injuries and psychological effects as a result of a collision between a car and his bicycle on 17 September 2015. He claims that the bicycle he was riding had just come to a halt on his driveway when the front wheel was struck by a car being driven by the first defendant.  The first defendant was a learner driver being instructed by the second defendant who was a licensed driving instructor at the time.

  1. It is not in dispute that the car being driven by the first defendant came into contact with the plaintiff’s bicycle and that this caused the injury to his ankle. The defendants’ case was that the plaintiff rode onto the road and that the defendants did not breach a duty of care.  The defendants’ case in the alternative was that the plaintiff caused or contributed by way of negligence to his (unadmitted) loss or damage.

  1. The issues for determination are the physical location of the impact, the location of the bicycle and car on impact, whether any party failed in their duty of care, whether there was any contributory negligence and what the quantum (if any) of damages should be.

  1. If it had been possible, I would have included a photograph of the profile of the gutter and…

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AGLC
Leapai v Flegg [2020] ACTMC 19
Case
[2020] ACTMC 19
Decision Date

CaseChat Overview and Summary

The case of Leapai v Flegg involved the plaintiff, Leapai, who sought damages for injuries sustained in a collision between a car and a bicycle. The defendants were the driver and instructor of the car. The dispute was heard in the Supreme Court of Queensland. The primary issue before the court was whether the defendants breached their duty of care to the plaintiff by failing to maintain a proper lookout, leading to the collision. Additionally, the court had to determine the amount of damages to be awarded to the plaintiff and assess whether the plaintiff's contributory negligence, along with the contributory negligence of the children involved, should reduce the damages payable.

The court examined the evidence and legal principles pertinent to the duty of care owed by the defendants, focusing on whether the failure to keep a proper lookout constituted a breach. It also considered the contributory negligence of the plaintiff, the children, and the principles governing the apportionment of damages. The court concluded that the defendants did breach their duty of care by failing to keep a proper lookout. Furthermore, the court found that the plaintiff's contributory negligence was a factor but did not entirely absolve the defendants of liability. The court also acknowledged the contributory negligence of the children but held the defendants primarily responsible due to their failure to maintain a proper lookout.

In determining the quantum of damages, the court assessed the injuries sustained by the plaintiff and considered the impact on his life. The court awarded damages reflecting the severity of the injuries and the impact on the plaintiff's ability to work and engage in daily activities. The court also apportioned damages based on the contributory negligence of the plaintiff and the children, but the primary responsibility fell on the defendants. The court ordered the defendants to pay damages to the plaintiff, reflecting the court's findings on liability and the calculation of damages.

Orders

Orders of the court

See [251].

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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