Lee v McGrath

[2018] ACTSC 173

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Lee v McGrath

Citation:

[2018] ACTSC 173

Hearing Dates:

4 June 2018 – 12 June 2018

DecisionDate:

14 June 2018

Before:

Elkaim J

Decision:

1.   Judgment for the defendant.

2. The plaintiff is to pay the defendant’s costs of the proceedings.

Catchwords:

TORTS – NEGLIGENCE – Motor vehicle accident – whether the defendant breached her duty of care to the plaintiff – whether the defendant’s negligence caused the harm – claim of contributory negligence – calculation of damages – nature and extent of injury

Legislation Cited:

Civil Liability Act 2002 (NSW) ss 5B, 5D and 5R

Civil Law (Wrongs) Act 2002 (ACT) ss 43, 45, 46 and 102
Evidence Act 2011 (ACT) s 63
Law Reform (Miscellaneous Provisions) Act 1965 (NSW) s 9

Motor Accidents Compensation Act 1999 (NSW) s 138

Cases Cited:

Texts Cited: 

Anikin v Sierra [2004] HCA 64; 211 ALR 621

Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139; 86 NSWLR 393
Hulanicki (bhnf Hulanicki) v Walton [2014] ACTSC 17
Hulanicki v Walton [2015] ACTCA 14
Mobbs v Kain [2009] NSWCA 301
Pennington v Norris (1956) 96 CLR 10
T & X Co Pty Ltd v Chivas [2014] NSWCA 235
Skelton v Collins (1966) 115 CLR 94

Steen v Senton [2015] ACTCA 57; 302 FLR 440

Harold Luntz, Assessment of Damages for Personal Injury and Death: General Principles (LexisNexis Butterworths, 4^th ed, 2006)

Parties:

Grant Lee by his litigation guardian the New South Wales Trustee and Guardian (Plaintiff)

Mikaela Ann McGrath (Defendant)

Representation:

Counsel

Mr G Stretton SC and Mr J Ronald (Plaintiff)

Mr K Rewell SC (Defendant)

Solicitors

KJB Law (Plaintiff)

Sparke Helmore Lawyers (Defendant)

File Number:

SC 200 of 2013

ELKAIM J:

1. The plaintiff was born in 1993. On 27 March 2009, when he was 15 years of age, he was crossing Clift Crescent in Richardson in the Australian Capital Territory (‘ACT’), as a pedestrian. He was struck by a motor vehicle driven by the defendant. He suffered catastrophic injuries.

1. The plaintiff has sued by a litigation guardian. His case is that his injuries were caused by the negligence of the driver of the motor vehicle (the defendant). The defendant has denied negligence. In the alternative, she submits that if she was negligent, so too was the plaintiff. Accordingly, there should be a reduction for contributory negligence.

1. The plaintiff’s claim for damages is made under the following heads: general damages, past and future economic loss; and the expenses of past and future medical care. Interest is also claimed, where appropriate.

1. As the plaintiff’s medical condition and care needs are really beyond dispute, the parties agreed on a number of items of damage. These are set out below.

1. The parties also agreed that the plaintiff’s life expectancy is 33 years from the present day.

1. The largest area of dispute in respect of quantum was economic loss. The plaintiff’s figures are based on average weekly earnings, calculated from the date…