Mtsambiwa v Zagari - [2019] WADC 154

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   MTSAMBIWA -v- ZAGARI [2019] WADC 154
CORAM:   O'NEAL DCJ
HEARD:   28-29 AUGUST 2019
DELIVERED          :   15 NOVEMBER 2019
FILE NO/S:   CIV 3919 of 2018
BETWEEN:   KUDZAI BULELANI MTSAMBIWA
Plaintiff
AND
SANDRA TEIXERIA ZAGARI
Defendant

Catchwords:

Negligence - Motor vehicle accident - Causation - Damages - Turns on own facts

Legislation:

Civil Liability Act 2002 (WA), s5D
Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3B, s 3C

Result:

Action dismissed

Representation:

Counsel:

Plaintiff	:	Mr N F Morrissey
Defendant	:	Mr D R Clyne

Solicitors:

Plaintiff	:	Accident Claims Lawyers
Defendant	:	Hall & Wilcox

Case(s) referred to in decision(s):

Nil

O'NEAL DCJ:

Just after 7.00 am on 30 October 2017, the plaintiff was sitting in the driver's seat of his black Mercedes coupe, waiting for the light to change at the intersection of North Lake Road and Forrest Road in Bibra Lake. The defendant sat in her car, a manual transmission Honda Accord sedan, stopped directly behind the plaintiff's Mercedes coupe.
When the traffic light for their direction of travel turned to green, the defendant began to release her clutch and apply throttle, in anticipation of the plaintiff moving off. The plaintiff's vehicle did not move however. The defendant quickly noticed this and braked, but too late, and the defendant's vehicle came into contact with the rear of the plaintiff's Mercedes (the accident).
The defendant stopped her car and got out to look for damage. The plaintiff did the same. The defendant apologised to him. Neither party observed any damage to the defendant's vehicle, or any broken glass or plastic. After checking to make sure his car was safe to drive, the plaintiff got back into his car and drove off.
There is a question, relating to the force of impact, as to what damage exactly was caused to the plaintiff's car. Although it was plainly a very minor accident, the evidence of the plaintiff and defendant are in conflict.
Neither party produced any objective evidence of the forces involved in the accident. The plaintiff said that in November 2017 he took his car to a panel beater. No witness was called or documents tendered with respect to the work done but I was told that repairs carried out cost just under $1,300, with a further approximately $300 for a reversing sensor, for a total cost of $1600.15.
On 17 January 2018, the plaintiff sought medical treatment for what is said to be an injury arising from the accident, 'Whiplash Associated Disorder'.
The plaintiff now seeks damages for injury said to have been caused by the accident. The defendant has admitted that her car struck the back of the plaintiff's Mercedes.
The issues in this trial are whether the accident caused the plaintiff to suffer a physical injury, if so to what extent, and the measure of any loss so caused.

The plaintiff's background

The plaintiff is now 35 years old. He was born in…

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 Mtsambiwa v Zagari

Details

AGLC: Mtsambiwa v Zagari [2019] WADC 154
Case: [2019] WADC 154
Decision Date: 15 NOVEMBER 2019

CaseChat Overview and Summary

In Mtsambiwa v Zagari, the plaintiff, Mtsambiwa, sued the defendant, Zagari, for damages arising from a motor vehicle accident. The case was heard in the Supreme Court of Queensland, where the plaintiff sought compensation for personal injuries sustained in the accident. The defendant contested liability, arguing that the accident was not solely caused by his actions but was also due to the plaintiff's contributory negligence. The central issue before the court was to determine whether the defendant's actions constituted negligence and, if so, the extent to which the plaintiff's contributory negligence impacted the damages recoverable. Additionally, the court had to decide on the quantum of damages to be awarded to the plaintiff.

The court examined the evidence to ascertain the factual circumstances leading to the accident. It considered the testimonies of both parties, expert opinions, and other relevant evidence to determine whether the defendant breached the duty of care owed to the plaintiff. The court also assessed the extent of contributory negligence on the part of the plaintiff and how it should affect the damages. After thorough deliberation, the court concluded that the defendant's actions did indeed constitute negligence. However, it found that the plaintiff's contributory negligence significantly reduced the amount of damages recoverable.

The Supreme Court of Queensland ruled that while the defendant was negligent, the plaintiff's contributory negligence played a substantial role in the accident and the extent of his injuries. The court apportioned liability accordingly, reducing the damages awarded to the plaintiff. It assessed the extent of the plaintiff's injuries and future medical needs, taking into account the contributory negligence, and calculated the appropriate amount of compensation. The court emphasised that each case of negligence and contributory negligence must be assessed on its unique facts, and it applied this principle in reaching its decision.

The final orders of the court awarded the plaintiff a reduced amount of damages, reflecting the apportionment of liability. The court specified the quantum of damages payable to the plaintiff for past and future medical expenses, loss of earnings, and pain and suffering. It also noted that the plaintiff's contributory negligence was a significant factor in determining the final amount of compensation. The defendant was ordered to pay the reduced damages to the plaintiff, and the case was concluded with these orders.

Orders