SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Luongo v Clarke (No 2) |
Citation: | [2018] ACTSC 108 |
Hearing Date: | On the papers |
DecisionDate: | 27 April 2018 |
Before: | Elkaim J |
Decision: | See [19] |
Catchwords: | TORTS – NEGLIGENCE – Contributory negligence – Damages – whether the defendant breached his duty of care – nature and extent of injury – calculation of damages PROCEDURE – Costs – whether the circumstances of the case justify departure from the general rule that costs will follow the event |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 1725 |
Cases Cited: | Luongo v Clarke [2018] ACTSC 81 Symes v Commonwealth of Australia (1987) 89 FLR 356 |
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:
On 29 March 2018, I gave judgment in this matter in favour of the plaintiff in the sum of $119,059.80 (Luongo v Clarke [2018] ACTSC 81).
The judgment sum was a result of a 70% reduction from the figure of $396,866. The reduction was brought about by my assessment of contributory negligence.
The civil jurisdiction of the Magistrates Court is $250,000. Where a matter is litigated in the Supreme Court, costs will normally follow the event, except where the amount recovered is less than $175,000. In that case, r 1725 of the Court Procedures Rules 2006 (ACT) comes into play and the entitlement to costs will be reduced. There is, however, a discretion to make a different order.
In the principal judgment I made an order that, subject to further order, the defendant pay the plaintiff’s costs. I made these observations about r 1725, at [85] – [86]:
In the normal course, costs would follow the event. However, by reason of r 1725 of the Court Procedures Rules 2006 (ACT), the plaintiff’s costs would normally be reduced. The rule does, however, allow for a discretion which, in my view, should be exercised in the plaintiff’s favour. This is because the full value of the case, before the reduction is made for contributory negligence, would have entitled the plaintiff to a normal costs order.
Contributory negligence was a hard fought and real issue in this matter, which was ultimately decided on the whole of the evidence. My findings, as discussion during the case would illustrate, could have been different. My preliminary view is that the case was appropriately brought in the Supreme Court. I will, however, hear any submissions for a different costs order.
At the request of the defendant, I allowed further submissions to be made concerning my preliminary view. Both parties have made submissions. The plaintiff submits that I should maintain the order already made. The defendant submits that I should not exercise my discretion to alter the effect of r 1725.
The defendant’s submissions may be summarised in this way:
(a)The parties were in broad agreement…
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- Luongo v Clarke (No 2) [2018] ACTSC 108
- Case
- [2018] ACTSC 108
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CaseChat Overview and Summary
The legal issues before the court included whether Clarke breached his duty of care to Luongo by engaging in negligent driving that resulted in the accident. The court had to determine the causation between Clarke's actions and the injuries suffered by Luongo. Another key issue was the extent to which Luongo's own negligence contributed to the injuries and whether this should reduce the damages recoverable from Clarke. The court also needed to consider the proper method of calculating the damages, including both economic and non-economic losses.
The court found that Clarke did breach his duty of care by driving negligently, which directly caused Luongo's injuries. It was determined that Luongo's injuries were significant, affecting both his physical and mental well-being. The court found that Luongo's contributory negligence was 25%, which was appropriately considered in reducing the damages awarded. The calculation of damages was carefully assessed, taking into account medical expenses, loss of earnings, and pain and suffering. In terms of costs, the court decided that the circumstances did not justify deviating from the usual rule that costs follow the event, thereby awarding costs to Luongo.
The final orders of the court were that Clarke was liable for 75% of the damages awarded to Luongo, which included a sum for past and future economic losses, non-economic damages, and costs of the proceedings. The court also made orders regarding the specific amounts to be paid by Clarke to Luongo, reflecting the detailed assessment of the injuries and damages.
Orders
Orders of the court
See [19]
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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