Marhaba v Chen

[2024] ACTSC 241

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Marhaba v Chen

Citation: 

[2024] ACTSC 241

Hearing Date: 

5-9 June 2023

Decision Date: 

26 July 2024

Before:

McWilliam J

Decision: 

(1)  Judgment is entered for the plaintiff in the sum of $155,524.

(2)  The defendants are to pay the plaintiff’s costs.

(3)  If any party seeks a variation to order 2 by notification to chambers within 7 days, order 2 is stayed until further order.

Catchwords: 

NEGLIGENCE – CAUSATION – DAMAGES – Motor vehicle accident – breach of duty admitted – extent of injury suffered –extent to which disabilities attributable to accident – where pre-existing back injury – where later spinal degeneration – whether plaintiff continued to experience physical and psychological sequelae from the accident – where credit of plaintiff in issue – extent of domestic assistance required – damages awarded in reduced amount to take account of pre-existing injury and degenerative condition

Legislation Cited: 

Civil Law (Wrongs) Act 2002 (ACT) ss 45(1), 99

Cases Cited: 

Baxterv Insurance Australia Limited [2015] ACTSC 273

Berkeley Challenge Pty Ltd v Howarth[2013] NSWCA 370

Blundell v Leighton [2013] ACTCA 1

Dow v Elbarbary [2017] ACTSC 418

Franklins Ltd v Burns; Burns v Franklins Ltd [2005] NSWCA 54

Leighton v Blundell [2011] ACTSC 136

Lumley v Sainsbury [2017] ACTSC 40

Malec v J C Hutton Pty Ltd (1990) 169 CLR 638

MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657

Rendell v Todd [2012] ACTSC 68

Robinson v Ng [2014] ACTSC 227

Scuderi v Raskurasingham [2017] ACTSC 41

Shorey v PT Limited [2003] HCA 27; 77 ALJR 1104

State Rail Authority of New South Wales v Brown [2006] NSWCA 220; 66 NSWLR 540

Tsueneaki v Stewart [2013] ACTCA 34

Wainwright v Lee [2013] ACTSC 191

Young v Rothin [2009] ACTSC 71

Parties: 

Rouba Marhaba ( Plaintiff)

Zheng Chen ( First Defendant)

AAI Limited t/as GIO Insurance ( Second Defendant)

Representation: 

Counsel

W Sharwood ( Plaintiff)

K Rewell SC ( Defendants)

Solicitors

Capital Lawyers ( Plaintiff)

Moray & Agnew ( Defendants)

File Number:

SC 388 of 2020

McWILLIAM J:          

1․On 16 June 2016, Ms Rouba Marhaba (the plaintiff) was involved in a car accident involving three vehicles.  She has brought a claim in negligence against the owner of the car causing the accident, Mr Zheng Chen, and his third-party insurer (the defendants).  A breach of duty of care has been admitted, but liability for the injuries claimed is in issue, as well as any quantum if liability is determined in the plaintiff’s favour.  They are the two matters for resolution in this proceeding, with the defendants strenuously contesting the plaintiff’s credit as to whether she suffered any injury at all from the accident, and if so, the extent of that injury and any consequent disabilities sounding in damages in this proceeding. 

The accident giving rise to the claim

2․On the day in question, the plaintiff, aged 46, was the driver of a Volkswagen multi-van.  She was stopped at traffic lights…