Luongo v Clarke

[2018] ACTSC 81

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Luongo v Clarke

Citation:

[2018] ACTSC 81

Hearing Dates:

26 March 2018 – 29 March 2018

DecisionDate:

29 March 2018

Before:

Elkaim J

Decision:

(i)   Judgment for the plaintiff in the sum of $119,059.80.

(ii)     Subject to further order, the defendant is to pay the plaintiff’s costs of the proceedings.

Catchwords:

TORTS – NEGLIGENCE – Contributory Negligence – Damages – whether the defendant breached his duty of care – nature and extent of injury – calculation of damages

Legislation Cited:

Civil Law (Wrongs) Act 2002 (ACT)

Court Procedures Rules 2006 (ACT) r 1725

Cases Cited:

Reece v Reece [1994] NSWCA 259

Parties:

Giuseppina Luongo (Plaintiff)

William Grant Clarke (Defendant)

Representation:

Counsel

Mr A Muller (Plaintiff)

Mr R Gambi (Defendant)

Solicitors

Maliganis Edwards Johnson (Plaintiff)

McCabes Lawyers (Defendant)

File Number:

SC 140 of 2017

ELKAIM J:

1. On 7 May 2014, the plaintiff was walking up Red Hill Drive on her way to the Red Hill Lookout. The defendant was riding his bicycle down Red Hill Drive. The defendant collided with the plaintiff near the intersection between Red Hill Drive and Gowrie Drive. The plaintiff was injured.

1. The plaintiff blames the defendant for her injuries. She says that he was riding in a negligent manner. The defendant says that he was not negligent but that, if he was, so too was the plaintiff.

1. The plaintiff says that the injuries she suffered were significant. She has claimed damages under the following heads: general damages; past and future medical expenses; and past and future domestic assistance. The defendant does not deny that the plaintiff was injured but challenges the nature and extent of the injuries.

1. The Civil Law (Wrongs) Act 2002 (ACT) is relevant to liability and the assessment of damages.

Before the Accident

1. The plaintiff was born in Italy in 1947. She was 66 when the accident occurred. She is currently 70 years old.

1. The plaintiff married in 1965. She came to Australia with her husband in 1966. They have three children: two daughters and a son. The plaintiff and her husband eventually began a family business specialising in cleaning commercial premises and schools. This continued until 2007, when the plaintiff’s husband had a heart attack.

1. The family stayed in business but concentrated on buying houses, putting them in good order and then renting them. The plaintiff was involved in the family business and was also very active at home, both indoors and outdoors.

1. The plaintiff had a number of medical problems before the accident. The two of particular relevance concern her right knee and her emotional state. She had a knee replacement in November 2011 which helped, but she continued to have some problems. She was encouraged to exercise as much as possible. The plaintiff also suffered from anxiety. She found her daughter’s marital breakdown particularly difficult to deal with.

1. I think that the plaintiff significantly understated the extent of her right knee injury and emotional state as it existed before the…