Macri v Mckinlay

[2020] ACTMC 11

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Macri v Mckinlay & Anor

Citation:

[2020] ACTMC 11

Hearing Dates:

4 – 5 April 2019, 6 November 2019

DecisionDate:

27 May 2020

Before:

Magistrate Morrison

Decision:

See paragraphs [70] and [87]

Catchwords:

CIVL LAW – NEGLIGENCE – motor vehicle accident – breach of duty of care admitted – causation – whether accident capable of causing injury and disability claimed by plaintiff – inconsistency between plaintiff’s oral testimony and contemporaneous medical notes – Mason v Demasi [2009] NSWCA 227 distinguished –quantum assessment

Legislation Cited:

Evidence Act 2011 (ACT) s 79

Cases Cited:

AB v Australian Capital Territory [2018] ACTSC 16

Geddes v Taleni [2017] ACTSC 183

Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161

Haider v Gudelj [2019] ACTSC 213

Jones v Dunkel [1959] HCA 8; 101 CLR 298

King v Barrie [2019] ACTSC 36

Mason v Demasi [2009] NSWCA 227

Nouri v Australian Capital Territory [2018] ACTSC 275

Payne v Parker [1976] 1 NSWLR 191

R v Greentree [2017] ACTSC 274

Re an application for leave to appeal by Insurance Australia Ltd [2017] ACTCA 57; 83 MVR 1

Utting v Clarke [2016] ACTSC 168

Parties:

Emma Macri (Plaintiff)

Monika Mckinlay (First Defendant)

Insurance Australia Limited trading as NRMA Insurance (Second Defendant)

Representation:

Counsel

D Shillington (Plaintiff)

K Rewell SC (Defendants)

Solicitors

Maliganis Edwards Johnson (Plaintiff)

HWL Ebsworth Lawyers (Defendants)

File Number:

CS 3 of 2018

MAGISTRATE MORRISON:

Introduction

1. The plaintiff claims that she suffered physical injuries and psychological effects as a result of a motor vehicle accident on 29 January 2015. She says that the stationary vehicle in which she was a passenger was struck by a reversing vehicle being driven by the first defendant.

1. It is not in dispute that the vehicle being driven by the first defendant came into contact with the vehicle in which the plaintiff was a passenger while the former was reversing. The first defendant admits a breach of a duty of care. What has been in contest is whether, and the extent to which, the plaintiff suffered the injuries and effects of which she complains as a result of the impact between the two vehicles.

Scope of the dispute

1. The evidence in the plaintiff’s case comprises the oral testimony of the plaintiff, Mr Johnny Horvath, Dr Robin Higgs, orthopaedic surgeon, and Ms Leesa Morris, forensic psychologist. It also includes the report of Dr Higgs dated 23 February 2017, the report of Ms Morris dated 28 December 2016, and various other medical records, including clinical notes, which comprise Exhibit P1. The driver of the vehicle in which the plaintiff was a passenger, Ms Rachel Pettit, did not give evidence.

1. The evidence in the defendants’ case comprises the oral testimony of the first defendant and Adjunct Associate Professor Robert Anderson, photographs of damage to both vehicles, and the report of Adjunct Associate Professor Anderson dated 9 August 2018. For convenience, I refer to Adjunct Associate Professor Anderson in these reasons simply…