Peak v Dunleavy

[2008] NSWDC 232

CITATION:	Peak v Dunleavy [2008] NSWDC 232
HEARING DATE(S):	18, 19, 25, 26, 27, 28 and 29 August 2008
JUDGMENT DATE:	10 October 2008
JURISDICTION:	District Court Civil
JUDGMENT OF:	Levy SC DCJ
DECISION:	1. I find the Defendant was negligent and I consequently enter a verdict for the Plaintiff in the agreed sum of $5,000,000. 2. I find contributory negligence on the Plaintiff’s part assessed at 35 per cent. 3. After apportionment for the Plaintiff’s contributory negligence I enter an interim Judgment for the Plaintiff in the sum of $3,250,000 pending an assessment of the amount to be allowed for funds management charges prior to the entry of final judgment. 4. I order the Defendant to pay the Plaintiff’s costs.
CATCHWORDS:	Negligence – motor vehicle collision – Plaintiff unable to give evidence – police investigation did not reveal point of impact in the collision – analysis of relevant events from limited data to determine the liability issues. - Contributory negligence – finding and apportionment dependent on evaluation of facts and circumstances. - Damages – agreed sum of $5,000,000 before apportionment – funds management charges to be assessed.
LEGISLATION CITED:	Motor Accidents Compensation Act (NSW) 1999: s 138
CASES CITED:	Adelaide Stevedoring Co Ltd v Forst [1940] 64 CLR 538 Bonnington Castings Ltd v Wardlaw (1956) AC 613 Bradshaw v McEwan Pty Ltd (HCA, 1952, unreported) Chappel v Hart [1998] 195 CLR 232 Clark v Ryan (1960) 103 CLR 486 Davies v Swan Motor Co. Ltd [1949] 2 KB 291 Duyvelshaff v Cathcart & Ritchie Ltd (1973) 1 ALR 125 at 138 Evans v Lindsay [2006] NSWCA 354 Fox v Percy [2003] 214 CLR 118 Jones v Dunkel [1958-1959] 101 CLR 298 Luxton v Vines (1952) 85 CLR 352 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Manley v Alexander (2005) 80 ALJR 413 March v E. & M.H Stramare Pty Limited [1990-1991] 171 CLR 506 R v Parker (1912) VLR 152 Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267
PARTIES:	Rachelle Suzanne Peak by her Tutor Doreen Peak Leonie Dunleavy
FILE NUMBER(S):	2280 of 2006
COUNSEL:	Mr RS McIlwaine SC and Mr CP Locke (Plaintiff) Mr SG Campbell SC and Mr SE McCarthy (Defendant)
SOLICITORS:	Velleley & Associates (Plaintiff) McLachlan Chilton (Defendants)

Introduction

1. The Plaintiff, Rachelle Suzanne Peak has brought these proceedings through her mother Doreen Peak as Tutor. The Plaintiff claims damages for alleged negligence in respect of severe and disabling injuries she sustained in a motor vehicle collision that occurred on 10 June 2004 when her motor vehicle came into collision with a vehicle that was driven by the Defendant. At the trial liability was in strong contest.

Nature of the case

2. The Plaintiff sustained severe multi-trauma which included a fracture of the base of the skull that required decompressive craniotomy, a crushed chest wall, pelvic fractures and multiple other musculo-ligamentous injuries and lacerations. She has been left with severe multiple…