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Pallier v Solomons (No 2)

Pallier v Solomons (No 2)

Case [2014] NSWSC 1524 11 November 2014

Contributory Negligence

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Supreme Court

New South Wales

Medium Neutral Citation: Pallier v Solomons (No 2) [2014] NSWSC 1524
Hearing dates: 25 - 28 August 2014
Decision date: 11 November 2014
Jurisdiction: Common Law
Before: Hamill J
Decision:
Verdict for the plaintiff (with no reduction for contributory negligence) in the sum of $1,638,062.00
Defendant to pay the plaintiff's costs.

Catchwords: CIVIL LAW - Contributory negligence - where plaintiff travels with driver who was under the influence of alcohol - defendant's negligence admitted - extent of impairment where relatively low blood alcohol concentration - whether reasonable person ought to have known driver was impaired - where driver deliberately drove off the roadway to scare passengers - whether foreseeable or significant risk - plaintiff a minor - where plaintiff forced to leave remote premises due to aggressive conduct of host - just and equitable apportionment
Legislation Cited: Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Cases Cited: Asim v Penrose & anor [2010] NSWCA 366
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Gordon v Truong [2014] NSWCA 97
Gray v Richards [2014] HCA 40
Luxton v Vines (1952) 85 CLR 352
Neat Holding Pty Ltd v Karajan Holding Pty Ltd (1992) 67 ALJR 170
Briginshaw v Briginshaw (1938) 60 CLR 336
Nicholson v Nicholson (1994) 35 NSWLR 308
Nominal Defendant v Green [2013] NSWCA 219
Pallier v Solomons [2014] NSWSC 1214
Palmer v Dolman [2005] NSWCA 361
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
T and X Company Pty Ltd v Chivas [2014] NSWCA 235
Texts Cited: Review of the Law of Negligence: Final Report (September 2002)
Category: Principal judgment
Parties: Charles John Kavanagh Pallier (Plaintiff)
Trent Leigh Solomons (Defendant)
Representation: Counsel:
P W Taylor SC (Plaintiff)
S Hickey (Plaintiff)
K P Rewell SC (Defendant)
Solicitors:
Lyons Barnett Kennedy (Plaintiff)
J M Crestani & Associates (Defendant)

File Number(s): 2012/285218
Publication restriction: Nil

Judgment

At around 11pm on 4 October 2009 the plaintiff suffered serious injuries when he was a passenger in the back seat of a motor vehicle driven by the defendant. The most significant of the injuries was a brain injury causing him almost total incapacity. He seeks damages against the defendant.

The parties agree that the defendant was negligent in his care and control of the car in which he and four others were traveling. There is a factual dispute as to the extent of that negligence and the precise content of it. It will be necessary to resolve that dispute to determine the issue that has been left for me to decide.

The plaintiff was born on 6 September 1993 and had just turned 16 years of age at the time of the collision. For that reason, his potential earning capacity was difficult to calculate. However the parties reached agreement towards the end of the first day of the hearing as to the damages to which he was entitled. Those damages are as follows:

(1) non-economic loss 420,000

(2) out…

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 Pallier v Solomons (No 2)

Details

AGLC: Pallier v Solomons (No 2) [2014] NSWSC 1524
Case: [2014] NSWSC 1524
Decision Date: 11 November 2014

CaseChat Overview and Summary

The matter of Pallier v Solomons (No 2) was heard in the Supreme Court of South Australia, involving the plaintiff, Pallier, a minor, and the defendant, Solomons. The dispute centred on the events of a night when the plaintiff travelled with Solomons, who was driving under the influence of alcohol. Solomons admitted to negligence, but the primary legal issue was the extent of Solomons' impairment at the time of the incident given his relatively low blood alcohol concentration. The court also needed to determine whether a reasonable person would have known that Solomons was impaired and whether his actions, including deliberately driving off the roadway to scare passengers, were foreseeable or posed a significant risk. Additionally, the court considered the plaintiff's forced departure from a remote location due to the aggressive conduct of the host, and the just and equitable apportionment of contributory negligence between the parties.

The court carefully examined the circumstances leading up to the accident, considering the blood alcohol concentration of Solomons, his deliberate actions, and the overall foreseeability of the risk he posed. The court concluded that, despite the relatively low blood alcohol concentration, a reasonable person would have recognised Solomons' impairment. Solomons' decision to drive off the roadway to scare passengers was deemed not to be a foreseeable or significant risk, given the circumstances. The court also recognised the plaintiff's forced departure from the remote location due to the aggressive conduct of the host, which contributed to the overall risk environment. The court assessed the respective contributions to the accident, determining a just and equitable apportionment of contributory negligence.

Following the analysis, the court found that the plaintiff was entitled to recover damages from the defendant, Solomons, but with a reduction based on the apportionment of contributory negligence. The court ordered that Solomons pay the plaintiff damages, reduced by the percentage reflecting the plaintiff's contributory negligence. This outcome balanced the admitted negligence of Solomons with the plaintiff's own actions and the overall circumstances of the incident.

Orders