Paun v Kay No. DCCIV-99-850 - [2001] SADC 144

PAUN V KAY
[2001] SADC 144
Judge Allan
Civil

The plaintiff claims against the defendant damages for injuries and loss sustained in a road accident which occurred on 19 July 1996. The accident occurred when a motor vehicle driven by the defendant collided with the plaintiff. Issues arise as to both liability and damages.
The accident the subject matter of the proceedings occurred at about 10:40pm in Tynte Street North Adelaide at a point east of the intersection of Tynte Street and O’Connell Street. The intersection is controlled by traffic lights. O’Connell Street runs in a north-south direction and Tynte Street in an east-west direction.
Immediately before the accident, the plaintiff was crossing Tynte Street on foot. He was walking in an approximate north-east direction, at an angle of about 45 degrees. He would have been partially turned away from vehicles travelling east along Tynte Street; the direction in which the defendant was travelling.
As he crossed Tynte Street, the plaintiff was carrying some roses. He had been selling flowers in restaurants and cafés in the area. At the time he set off to cross Tynte Street, he was heading for a Thai restaurant situated on the northern side of Tynte Street and some distance east of the intersection. He was wearing a dark leather jacket, a white shirt and dark trousers.
Constable Martin attended at the scene after the accident. I accept his evidence as to his observations and measurements. He endeavoured to fix the point of impact. In the area where the collision occurred, the width of Tynte Street was 24 paces. It was measured by Constable Martin who said one of his paces is equal to about .8 of a metre. On the northern carriageway of Tynte Street, he found some roses. I infer they were the roses the plaintiff was carrying before he was struck. Constable Martin said the roses were 45 paces from O’Connell Street. He could not say whether that was from the kerb alignment or the building alignment of O’Connell Street. He found a quantity of blood on the northern carriageway of Tynte Street about 18 paces east of the roses. He did not make any measurement of the distance of the roses and the blood from the northern kerb alignment of Tynte Street; nor from the southern kerb alignment for that matter. He said there was provision for angle parking on the northern side of Tynte Street in the area of where the collision occurred and that it extended about five paces onto the roadway. There were cars parked in that area at the time. That is the evidence of the defendant, and I accept it.
Constable Martin inspected the vehicle driven by the defendant at the scene of the accident. It was a 1988 Toyota Celica. He found an impact mark on the left side of the front windscreen “in the shape of a head indentation”.
Constable Martin deduced that the point of impact was in the area where…

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 Paun v Kay No. DCCIV-99-850

Details

AGLC: Paun v Kay No. DCCIV-99-850 [2001] SADC 144
Case: [2001] SADC 144
Decision Date: 4 December 2001

CaseChat Overview and Summary

In the case of Paun v Kay, the plaintiff, Paun, sought damages for injuries and loss sustained in a road accident that occurred on 19 July 1996. The accident happened when a motor vehicle driven by the defendant, Kay, collided with the plaintiff while he was crossing Tynte Street in North Adelaide. The dispute involved both liability and damages. The plaintiff alleged that Kay was negligent in failing to keep a proper lookout and that his injuries were severe, resulting in considerable pain and suffering.

The court was tasked with determining the extent of Kay's negligence, whether Paun was contributory negligent, and the appropriate quantum of damages. The court considered evidence from Constable Martin, who measured the scene of the accident, and from medical experts who assessed Paun's injuries and their impact on his life. The court also evaluated the credibility of the parties' testimonies regarding the circumstances leading up to the accident.

The court found that Kay was negligent for failing to maintain a proper lookout, which led to the collision. It also concluded that Paun was contributory negligent due to his failure to keep a proper lookout himself, although the court attributed 70% of the liability to Kay and 30% to Paun. Regarding damages, the court assessed past economic loss at $4,500, future economic loss at $7,500, non-economic loss at $30,400, future medical expenses at $2,000, special damages at $571.85, and interest at $1,000. After reducing the total damages by 30% due to Paun's contributory negligence, the court awarded Paun $23,332.13.

The final order of the court was for Kay to pay Paun the sum of $23,332.13, plus any costs to be determined in subsequent proceedings.

Orders