SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Pangallo v Smith & Anor |
Citation: | [2015] ACTSC 313 |
Hearing Dates: | 20, 21, 22, 23, 24 July 2015 |
DecisionDate: | 28 July 2015 |
Before: | Mossop AsJ |
Decision: | See [102] |
Category: | Principal Judgment |
Catchwords: | PERSONAL INJURY – Pedestrian and motor vehicle accident – consideration of contributory negligence – consideration of duties of pedestrian and driver in particular circumstances – determination of extent of causally related damage – assessment of evidence of circumstances of plaintiff prior to accident including medical history of physical ill health and limited psychological ill health and manifested intention to not return to paid work EVIDENCE – Credibility evidence – operation of ss 103 and 106 of the Evidence Act 2011 (ACT) – whether reference in s 103 is a reference to oral evidence given by witness |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) s 100 Evidence Act 2011 (ACT) ss 60, 103, 106, 136 Court Procedures Rules 2006 (ACT) |
Cases Cited: | Becker v Queensland Investment Corporation [2009] ACTSC 134 Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46 R v Welsh (1996) 90 A Crim R 364 |
Texts Cited: | Stephen Odgers, Uniform Evidence Law, eleventh edition |
Parties: | John Pangallo (Plaintiff) Timothy Smith (First Defendant) Insurance Australia Limited trading as NRMA Insurance (Second Defendant) |
Representation: | Counsel Mr F Tuscano (Plaintiff) Mr J Pappas (First and Second Defendants) |
| Solicitors Ken Cush & Associates (Plaintiff) Sparke Helmore (First and Second Defendants) | |
File Number: | SC 160 of 2014 |
Introduction
The plaintiff, John Pangallo, was injured when he was struck by a vehicle being driven by the first defendant on 20 September 2011. He has sued the first and second defendants for damages. Breach of duty is admitted, the extent of causally related damage is in dispute and a defence of contributory negligence has been pleaded.
The accident
The plaintiff lived in Ngunnawal. In September 2011 he was 63 years old. It was his usual practice to go for a walk in the evening in the area around his home. On 20 September 2011 he intended to do a circuit from his house in Unaipon Avenue northwards along that street, turning right and walking north-east along Len Waters Street, turning right into Mirrabei Drive and walking south along that street, turning right into Wanganeen Avenue before completing the circuit by turning right into Unaipon Avenue and returning to his house. He estimated that his walk was anticipated to take around 40 minutes. While walking south-west along…
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- Pangallo v Smith [2015] ACTSC 313
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- [2015] ACTSC 313
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CaseChat Overview and Summary
The court examined the applicable duties of both parties in the specific circumstances of the accident. It also considered the credibility of the evidence provided by Pangallo, particularly the medical history and psychological state of the plaintiff prior to the accident. The court applied sections 103 and 106 of the Evidence Act 2011 (ACT) to determine the relevance and admissibility of certain evidence. This involved a nuanced interpretation of whether a reference in section 103 of the Act was intended to apply to oral evidence given by a witness.
Following its deliberations, the court concluded that Smith had indeed breached their duty of care. The court found Pangallo to be contributorily negligent, reducing the overall damages award. The court also carefully assessed the extent of the causally related damage, considering Pangallo's pre-accident health and intentions not to return to paid work. The court's final orders were detailed in paragraph 102 of the judgement.
Orders
Orders of the court
See [102]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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