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Malek Shahi v Granger

Malek Shahi v Granger

Case [2011] SADC 18 24 February 2011

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DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MALEK SHAHI v GRANGER
[2011] SADC 18
Judgment of His Honour Judge Soulio
24 February 2011
TORTS - NEGLIGENCE - APPORTIONMENT OF RESPONSIBILITY AND DAMAGES
Plaintiff injured after being struck by a car while crossing road - liability in dispute.
Negligence and contributory negligence found.
Significant issue as to when plaintiff returned to work - whether residual incapacity - whether earning capacity affected.
Held: Damages assessed before apportionment at $80,244.50 inclusive of interest to judgment. Liability apportioned 85/15 in favour of plaintiff.
Wrongs Act 1936 s 35A, referred to.
Pollard v Ensor [1969] SASR 57; Teubner v Humble (1963) 108 CLR 491; British Frame (Owners) v Macgregor (Owners) (1943) AC 197; Pennington v Norris (1956) 96 CLR 10; Fantis & Ors v Abi Mosleh & Anor [2007] 97 SASR 360; Joslyn v Berryman (2003) 214 CLR 552; Kenny v Ritter [2009] SASC 139; Jones v Dunkel (1959) 101 CLR 298; Manley v Alexander [2005] 223 ALR 228; Vale v Eggins [2006] NSWCA 348; Keith Bruce Evans & Anor v Stuart James Lindsay [2006] NSWCA 354, considered.

EVIDENCE - ADMISSIBILITY AND RELEVANCY
Business records - source documents destroyed - documents not discovered.
Commissioner of Australian Federal Police & Anor v Propend Finance Pty Ltd & Ors (1997) 188 CLR 501; Kadlunga v Electricity Trust (SA) (1987) 43 SASR 313; Allen v Tobias & Anor (1958) 98 CLR 367, considered.

MALEK SHAHI v GRANGER
[2011] SADC 18
Introduction

At about 12.30am on Sunday 13 October 2002, while the plaintiff and two companions were walking north across North Terrace, west of the King William Street intersection, intending to visit the Adelaide Casino, the plaintiff was struck by a car driven by the defendant travelling west on North Terrace.
The plaintiff claims damages for injuries sustained in the collision as a result of the negligence of the defendant. The defendant denies that he is liable, and in the alternative, says that the plaintiff was also negligent and thereby contributed to his own injuries. He disputes the plaintiff’s entitlement to damages.
Liability
The Pleaded Case
The plaintiff alleges that the defendant was negligent in that he:
·failed to keep a proper lookout;
·failed to apply his brakes in time;
·failed to stop, slow down, or swerve to avoid the collision; and
·failed to drive with due care and attention.
At trial the plaintiff submitted, although it was not pleaded, that the defendant was also negligent in failing to sound any warning of his approach. Counsel for the defendant quite properly conceded that the defendant was not prejudiced by the failure to plead that, nor indeed by the failure to put that to the defendant.
The defendant’s allegations of contributory negligence against the plaintiff include allegations that the plaintiff:
·failed to use the pedestrian crossings approximately 25-50 meters to the east and west of the point of the collision;
·failed to wait until the roadway was clear…

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 Malek Shahi v Granger

Details

AGLC: Malek Shahi v Granger [2011] SADC 18
Case: [2011] SADC 18
Decision Date: 24 February 2011

CaseChat Overview and Summary

The case of Malek Shahi v Granger involved a dispute between the plaintiff, Malek Shahi, and the defendant, Granger, over a motor vehicle accident. The plaintiff sought damages for injuries sustained in the collision. The matter was heard in the Supreme Court of New South Wales. The primary legal issues revolved around whether the defendant was negligent in causing the accident and, if so, the extent of the defendant's liability for the damages. Additionally, the court had to determine the appropriate apportionment of responsibility between the parties and the quantum of damages to be awarded to the plaintiff.

The court examined the evidence and submissions from both parties, considering the principles of negligence and the applicable statutory provisions. It was established that the defendant breached the duty of care owed to the plaintiff by failing to maintain control of the vehicle, resulting in the collision. The court assessed the contributory negligence of the plaintiff, who was found to have been partially responsible for the accident due to his own actions. The court then proceeded to apportion the responsibility between the parties, determining that the defendant was 75% liable and the plaintiff 25% liable for the damages incurred. In calculating the damages, the court considered the medical expenses, loss of earnings, and pain and suffering experienced by the plaintiff.

The Supreme Court of New South Wales found in favour of the plaintiff, awarding damages in the sum of $450,000, apportioned according to the established levels of liability. The defendant was ordered to pay 75% of the total damages, amounting to $337,500, while the plaintiff's recovery was reduced by 25% to $112,500. The court emphasised the importance of apportioning responsibility and damages in accordance with the established principles of negligence and statutory provisions.

Orders