Peter Incandela v Bozo Bobanovic

PETER INCANDELA v BOZO BOBANOVIC
[2013] ACTSC 213(21 October 2013)

NEGLIGENCE – personal injury – motor vehicle collision – inconsistencies in evidence – plaintiff’s credit damaged in cross-examination – other evidence supporting conclusion that collision occurred and that driver of defendant’s vehicle was negligent – Court satisfied that plaintiff’s case on liability made out
DAMAGES – personal injury – motor vehicle collision – injury to cervical spine – plaintiff undergoing surgical procedures – much of plaintiff’s evidence not accepted – damages assessed to reflect finding of fact – no issue of principle

Kuhl v Zurich Financial Services Australia Ltd & Anor (2011) 243 CLR 361

No. SC 362 of 2007

Judge: Higgins CJ       
Supreme Court of the ACT

Date:              21 October 2013

IN THE SUPREME COURT OF THE     )
  )          No. SC 362 of 2007
AUSTRALIAN CAPITAL TERRITORY           )          

BETWEEN:  PETER INCANDELA

Plaintiff        

AND:  BOZO BOBANOVIC

Defendant

ORDER

Judge:  Higgins CJ
Date:  21 October 2013
Place:  Canberra

THE COURT ORDERS THAT:

1. There be judgment for the plaintiff for $222,500.00

1. The plaintiff, Mr Incandela, was, allegedly, involved in a motor vehicle accident on 2 March 2006.  The plaintiff asserted that he was driving in a southerly direction along the Barton Highway near Hall in the ACT.  At the intersection with Wallaroo Road he turned right with a view to proceeding along that road.  He was then living at a property belonging to Ms Cathy Trimboli.

1. As he was turning, another vehicle, registered in the name of the defendant, was being driven by an unknown person, apparently without the knowledge or permission of the defendant.  That vehicle was a 1985 blue Ford sedan while the vehicle owned by the plaintiff was a 2002 Daihatsu Terios.  The blue Ford was in a slip lane that joined Wallaroo Road apparently proposing to turn left into Wallaroo Road. 

1. The plaintiff expected that the vehicle would give way to him so that he could complete his right turn.  However, it did not and collided with the passenger side of his vehicle.

1. The plaintiff claimed injury as a result.  The defence pleaded:

(a)There was no genuine “accident”: any “accident” was staged with a view to provide circumstances for the plaintiff to make a claim for damages;

(b)In the alternative, even if there was an “accident” the forces involved were so slight as not to cause any injury to the plaintiff;

(c)In any event, the plaintiff was not injured;

(d)The plaintiff has manufactured or exaggerated injuries, disabilities and consequential damage claims for the purpose of acquiring damages to which he is not entitled.

1. This amounted to a fundamental challenge to the plaintiff’s case.

Was there an accident?

1. There was no dispute concerning certain facts.  First, that the defendant’s vehicle was, on 2 March 2006, stolen (i.e taken and used without the owner’s knowledge or consent).  It was reported as stolen from the Canberra Institute of Technology (‘CIT’) carpark at Reid, ACT.  It was then undamaged.  The report was received by police at 5.00 pm and allocated a job…