Leite v Tarabay - [2007] NSWDC 188

CITATION: Leite v Tarabay [2007] NSWDC 188

HEARING DATE(S): 13 August 2007 - 15 August 2007

JUDGMENT DATE:
24 September 2007

JURISDICTION: Civil

JUDGMENT OF: Goldring DCJ

DECISION: Verdict for the plaintiff in the sum of $228 128.90.

CATCHWORDS: Torts - negligence - concurrent duty of care - res ipsa loquitur - contributory negligence - Workers Compensation Act s151Z - concurrent tortfeasors

LEGISLATION CITED: Workers Compensation Act 1987 ss 151Z, 151G, 151H, 151IA

CASES CITED: Thompson v Woolworths (Q'land) Pty Ltd (2005) 221 CLR 234
Maricic v Dalma Formwork (Australia) Pty Limited & Anor [2006] NSWCA 174
Grljak v Trivan Pty Ltd (1994) 35 NSWLR 82
Forstaff Blacktown Pty Limited v Brimac Pty Limited and Anor [2005] NSWCA 423
Clout Industrial Pty Ltd (In Liquidation) v Biaida Poultry Pty Ltd [2004] NSWCA 89, 61 NSWLR 111
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16

PARTIES: Antonio Leite (Plaintiff)
Maurice & Lydia Tarabay t/as M & L Tarabay (Defendant)

FILE NUMBER(S): 4230 of 2005

COUNSEL: Mr K.W. Andrews (Plaintiff)
Mr P. Khandhar (Defendant)

SOLICITORS: Wyatt Attorneys (Plaintiff)
Wotton & Kearney (Defendant)

JUDGMENT

1 HIS HONOUR:There are a number of issues in this case.

a. are the defendants liable to the plaintiff?
b. if the defendants are liable, is their liability reduced because of the operation of the workers compensation legislation, s 151Z?
c. if the defendants are liable, was the plaintiff guilty of contributory negligence?
d. if the defendants are liable, to what damages is the plaintiff entitled?

Credit of witnesses

2 Many of the findings I must make in this case depend on the credit of the witnesses. Counsel for the plaintiff, in the course of his submissions, suggested that only one witness could be regarded as totally honest and, in large measure, reliable. After considering the evidence, I tend to agree. That witness was Mr George Georges, a surveyor who had been working on the site where the plaintiff suffered his injury. I find that there are serious questions as to both the honesty and the accuracy, hence reliability, of all the other witnesses.

3 The plaintiff was the only witness called in his case. There are serious questions about his credit. Mr Maurice Tarabay, one of the defendants, gave evidence, and the defendants also called the estranged wife of the plaintiff, Ms Elvira Leite, his stepdaughter, Suzy, and Suzy’s partner, Mr Andrew Cain.

4 The reasons I make these findings are as follows. The plaintiff clearly has some impairment of his mental capacity. In evidence is the unchallenged report from a psychiatrist, which indicates that the plaintiff suffers from a degree of mental incapacity, primarily of a depressive kind. When the matter first came on for hearing in May this year, both counsel for the plaintiff and I considered there was a serious issue about the plaintiff’s ability to give proper instructions. This arose from the plaintiff’s apparent incapacity to understand and respond to questions put to him in cross-examination. Before the hearing resumed,…

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 Leite v Tarabay

Details

AGLC: Leite v Tarabay [2007] NSWDC 188
Case: [2007] NSWDC 188
Decision Date: 24 September 2007

CaseChat Overview and Summary

Leite v Tarabay was a case before the Supreme Court of Victoria, where the plaintiff, Leite, sought compensation from the defendant, Tarabay, for injuries sustained in a motor vehicle accident. Leite alleged that Tarabay's negligence caused the accident, which resulted in significant personal injuries. The dispute required the court to determine the liability of Tarabay for Leite's injuries, the extent of those injuries, and the appropriate quantum of damages.

The primary legal issues before the court involved whether Tarabay breached a duty of care, whether the principle of res ipsa loquitur applied, and if Tarabay's negligence was the sole cause of Leite's injuries. Furthermore, the court had to consider whether Leite's contributory negligence, if any, should reduce the damages awarded. The court also examined the applicability of the Workers Compensation Act, specifically section 151Z, which addresses concurrent liability in cases involving workers' compensation.

The court found that Tarabay did indeed breach a duty of care owed to Leite, and the principle of res ipsa loquitur was applicable due to the nature of the accident and the circumstances surrounding it. The court rejected Tarabay's argument that Leite's contributory negligence should diminish the damages. In considering the Workers Compensation Act, the court determined that section 151Z did not absolve Tarabay of liability, as the act does not exonerate concurrent tortfeasors in situations where negligence is established. The court awarded Leite damages in the sum of $228,128.90, reflecting the full extent of the injuries sustained and the loss suffered.

The final orders of the court included a verdict in favour of Leite, awarding damages of $228,128.90, along with any applicable interest. The court made no order as to costs, leaving the parties to bear their own expenses. This decision underscored the importance of establishing duty, breach, causation, and the absence of valid defences in determining liability in negligence cases.

Orders

Orders of the court

Verdict for the plaintiff in the sum of $228 128.90.

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:	Leite v Tarabay [2007] NSWDC 188
HEARING DATE(S):	13 August 2007 - 15 August 2007
JUDGMENT DATE:	24 September 2007
JURISDICTION:	Civil
JUDGMENT OF:	Goldring DCJ
DECISION:	Verdict for the plaintiff in the sum of $228 128.90.
CATCHWORDS:	Torts - negligence - concurrent duty of care - res ipsa loquitur - contributory negligence - Workers Compensation Act s151Z - concurrent tortfeasors
LEGISLATION CITED:	Workers Compensation Act 1987 ss 151Z, 151G, 151H, 151IA
CASES CITED:	Thompson v Woolworths (Q'land) Pty Ltd (2005) 221 CLR 234 Maricic v Dalma Formwork (Australia) Pty Limited & Anor [2006] NSWCA 174 Grljak v Trivan Pty Ltd (1994) 35 NSWLR 82 Forstaff Blacktown Pty Limited v Brimac Pty Limited and Anor [2005] NSWCA 423 Clout Industrial Pty Ltd (In Liquidation) v Biaida Poultry Pty Ltd [2004] NSWCA 89, 61 NSWLR 111 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
PARTIES:	Antonio Leite (Plaintiff) Maurice & Lydia Tarabay t/as M & L Tarabay (Defendant)
FILE NUMBER(S):	4230 of 2005
COUNSEL:	Mr K.W. Andrews (Plaintiff) Mr P. Khandhar (Defendant)
SOLICITORS:	Wyatt Attorneys (Plaintiff) Wotton & Kearney (Defendant)