Murray v Ellinghaus

[2009] NSWSC 391

CITATION:	Murray v Ellinghaus [2009] NSWSC 391
HEARING DATE(S):	11 May 2009
JURISDICTION:	Common Law
JUDGMENT OF:	Adams J at 1
EX TEMPORE JUDGMENT DATE:	11 May 2009
DECISION:	Proceedings transferred to District Court. The defendant to have the costs of today.
CATCHWORDS:	Motor traffic accident - whether should be transferred to District Court - defence of contributory negligence - whether should be taken into account in considering likely damages - matter transferred
LEGISLATION CITED:	Civil Procedure Act 2005 s146
CATEGORY:	Procedural and other rulings
PARTIES:	Luke Josiah MURRAY (Plaintiff) Jonathan ELLINGHAUS (Defendant)
FILE NUMBER(S):	SC 20537/08
COUNSEL:	A Giurtalis (Plaintiff) O Mailian (Sol) (Defendant)
SOLICITORS:	Stacks The Law Firm (Plaintiff) Carroll & O'Dea (Defendant)

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

MONDAY 11 MAY 2009

20537/08 Luke Josiah MURRAY v Jonathan ELLINGHAUS

JUDGMENT

1 HIS HONOUR: This is a tragic case of a plaintiff who suffered extremely serious injuries as a passenger of a motor vehicle involved in an accident, it being alleged that the defendant lost control of the vehicle and collided with another which was parked on the side of the road. The statement of claim, clearly enough, shows a proper case for proceedings and, if the allegations of fact are made out, undoubtedly the plaintiff will be entitled to substantial damages.

2 The plaintiff was twenty-three years old as at the date of the accident and his injuries will, for all practical purposes, prevent him from working, at least at any sustained level, for the rest of his life. It is obvious, therefore, that the economic loss is very great if the case is proved, and his general damages are likely to be substantial. The defendant’s case is, in substance, that there was significant contributory negligence, in that the defendant being drunk when he drove the car, the plaintiff ought not to have entered it and that in doing so he failed to take proper care for his own safety amounting to a voluntary assumption of risk. A duty of care is also denied but it is unlikely that that question will raise any complex legal issue.

3 Matters of this kind are frequently the subject of dispute and findings require judgments as to credibility. However, they are matters of fact and degree and in this case will not, as the matter appears at present to me, be complicated.

4 The defendant seeks orders under s 146 of the Civil Procedure Act 2005 transferring these proceedings to the District Court. Section 146(4) is in the following terms:

“Proceedings in the Supreme Court on a claim for damages arising from personal injury or death are to be transferred under this section unless the Supreme Court is satisfied:
(a) in the case of a motor accident claim or workplace injury damages claim:
(i) that the amount to be awarded to the plaintiff, if successful, is likely to be more than $1,000,000, and
(ii) that the case involves complex legal issues or issues of general public importance, or
(b) in any other case:
(i) that the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court, or
(ii) that there is other sufficient reason for hearing the proceedings in the Supreme Court.”

5 In this case the substantial issue concerns the significance of the plaintiff's entering the vehicle knowing, it is alleged, that the driver was drunk. There is a defence foreshadowed of contributory negligence. It is argued on behalf of the defendant that I should take that into account in considering whether the amount which is likely to be awarded to the plaintiff could exceed $1 million. It is to be noted that the language of the paragraph refers to an award to the plaintiff which is likely to be made if the plaintiff is “successful”. It seems to me that the possibility of a reduction of damages due to the claimed contributory negligence must therefore be disregarded. Moreover, this case does not involve complex legal issues or issues of general public importance, nor is there any other sufficient reason for hearing the proceedings in this Court. Accordingly, I make the orders sought.

6 The proceedings are transferred to the District Court. The defendant is to have the costs of today.

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