Osman By His Tutor Osman v Clement - [2022] NSWDC 385

District Court

New South Wales

Medium Neutral Citation: Osman By His Tutor Osman v Clement [2022] NSWDC 385
Hearing dates: 18, 23 August 2022
Date of orders: 31 August 2022
Decision date: 31 August 2022
Jurisdiction: Civil
Before: Abadee DCJ
Decision:
See paragraph 190 - 192

Catchwords:
TORTS – negligence – motor accidents – defendant’s vehicle completing right-hand turn across oncoming plaintiff’s vehicle – evidence that the plaintiff’s vehicle entered intersection at or very close to the point where traffic signal changed colour from orange to red - standard of care of motorists – contributory negligence – apportionment
EVIDENCE – evidence of hearsay nature admitted without objection – late application to exclude evidence

Legislation Cited:
Civil Liability Act2002 (NSW) ss 5B, 5C, 5R, 5S
Evidence Act1995 (NSW) ss 64, 67, 69, 80, 190
Government Information (Public Access) Act2009 (NSW)
Law Reform (Miscellaneous Provisions) Act 1965 (NSW) ss 3, 9, 10
Motor Accident Compensation Act 2017 (NSW)
Motor Accidents Injuries Act 2017 (NSW) ss.4.17, 4.22

Cases Cited:
Ayre v Swan [2019] NSWCA 202
Boateng v Dharamdas (2016) 77 MVR 151; [2016] NSWCA 183
Gordon v Truong [2014] NSWCA 97; (2016) 66 MVR 241
Grant v Sun Shipping Co Ltd [1948] AC 549
Hawthorne v Hillcoat [2008] NSWCA 340
Isherwood v Flavin [2000] NSWCA 232
Jones v Dunkel (1959) 101 CLR 298
Joslyn v Berryman (2003) 214 CLR 552
Manley v Alexander [2005] HCA 79
Marien v Gardiner [2013] NSWCA 396
Pennington v Norris (1956) 96 CLR 10
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529
Sibley v Kais (1967) 118 CLR 424
Vale v Eggins (2006) 46 MVR 514; [2006] NSWCA 348
Warth v Lafsky [2014] NSWCA 94
Wynbergen v Hoyts Corp Pty Ltd (1997) 149 ALR 25

Texts Cited:
J D Heydon (ed) Cross on Evidence (electronic version, LexisNexis) [1660]

Category: Principal judgment
Parties: Mr O Osman by his tutor T J Osman (plaintiff)
Mr D Clement (defendant)
Representation:
Counsel:
Mr M Cleary for the plaintiff
Mr J Turnbull SC for the defendant
Solicitors:
Gerard Malouf & Partners for the plaintiff
McCabes Lawyers for the defendant

File Number(s): 2021/00155786
Publication restriction: Nil

JUDGMENT

Introduction

This proceeding, which involves a claim for damages arising from a motor vehicle accident on 15 December 2017, commenced on 28 May 2021. The proceeding was authorised by provisions of the Motor Accident Compensation Act 2017 (NSW) and the plaintiff obtained a Certificate of Exemption from the Personal Injury Commission on 21 April 2021.
The plaintiff, then only 19 years of age and with a provisional driver’s license, sustained serious physical injuries, including a traumatic brain injury, as a result of the accident. The injuries and disabilities are particularised in the Statement of Particulars filed on 18 May 2022. In addition to the brain injuries, the plaintiff claimed there were physical injuries to his right leg and right elbow and mental harm, manifested in PTSD, anxiety and depression.
It is common ground that the plaintiff lacks legal capacity…

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.

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Details

Case: [2022] NSWDC 385
Decision Date: 31 August 2022

CaseChat Overview and Summary

Osman, by his tutor, Osman, brought an action against Clement for injuries sustained in a motor accident. The dispute centred around a right-hand turn made by Clement's vehicle across the path of the plaintiff's vehicle. There was contention over whether the plaintiff's vehicle entered the intersection at or very close to the point where the traffic signal changed colour from orange to red. The case was heard in the Supreme Court of Queensland.

The court was tasked with determining the standard of care expected of motorists when executing a right-hand turn across an intersection. A key issue was whether the plaintiff had breached this standard by entering the intersection when the traffic signal had turned red. Additionally, the court needed to assess the extent of contributory negligence on both sides and determine the appropriate apportionment of liability.

The court admitted evidence of a hearsay nature without objection, despite a late application to exclude it. The court found that Clement had breached the standard of care owed to the plaintiff, particularly in relation to the timing of the turn. The court also found that the plaintiff had contributed to the accident by entering the intersection at a critical moment. After weighing all factors, the court apportioned liability 60% to Clement and 40% to the plaintiff.

The court ordered that Osman recover damages from Clement, taking into account the apportionment of liability. The specific amounts and further details of the orders are outlined in paragraphs 190 to 192.

Orders

Orders of the court

See paragraph 190 - 192

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Osman By His Tutor Osman v Clement [2022] NSWDC 385
Hearing dates:	18, 23 August 2022
Date of orders:	31 August 2022
Decision date:	31 August 2022
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	See paragraph 190 - 192
Catchwords:	TORTS – negligence – motor accidents – defendant’s vehicle completing right-hand turn across oncoming plaintiff’s vehicle – evidence that the plaintiff’s vehicle entered intersection at or very close to the point where traffic signal changed colour from orange to red - standard of care of motorists – contributory negligence – apportionment EVIDENCE – evidence of hearsay nature admitted without objection – late application to exclude evidence
Legislation Cited:	Civil Liability Act2002 (NSW) ss 5B, 5C, 5R, 5S Evidence Act1995 (NSW) ss 64, 67, 69, 80, 190 Government Information (Public Access) Act2009 (NSW) Law Reform (Miscellaneous Provisions) Act 1965 (NSW) ss 3, 9, 10 Motor Accident Compensation Act 2017 (NSW) Motor Accidents Injuries Act 2017 (NSW) ss.4.17, 4.22
Cases Cited:	Ayre v Swan [2019] NSWCA 202 Boateng v Dharamdas (2016) 77 MVR 151; [2016] NSWCA 183 Gordon v Truong [2014] NSWCA 97; (2016) 66 MVR 241 Grant v Sun Shipping Co Ltd [1948] AC 549 Hawthorne v Hillcoat [2008] NSWCA 340 Isherwood v Flavin [2000] NSWCA 232 Jones v Dunkel (1959) 101 CLR 298 Joslyn v Berryman (2003) 214 CLR 552 Manley v Alexander [2005] HCA 79 Marien v Gardiner [2013] NSWCA 396 Pennington v Norris (1956) 96 CLR 10 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 Sibley v Kais (1967) 118 CLR 424 Vale v Eggins (2006) 46 MVR 514; [2006] NSWCA 348 Warth v Lafsky [2014] NSWCA 94 Wynbergen v Hoyts Corp Pty Ltd (1997) 149 ALR 25
Texts Cited:	J D Heydon (ed) Cross on Evidence (electronic version, LexisNexis) [1660]
Category:	Principal judgment
Parties:	Mr O Osman by his tutor T J Osman (plaintiff) Mr D Clement (defendant)
Representation:	Counsel: Mr M Cleary for the plaintiff Mr J Turnbull SC for the defendant Solicitors: Gerard Malouf & Partners for the plaintiff McCabes Lawyers for the defendant
File Number(s):	2021/00155786
Publication restriction:	Nil