District Court
New South Wales
Medium Neutral Citation: Rafferty-Butfield v Antonio [2017] NSWDC 2 Hearing dates: 5, 7 & 8 April 2016 Date of orders: 25 January 2017 Decision date: 25 January 2017 Jurisdiction: Civil Before: Judge Levy SC Decision: 1. Verdict for the plaintiff in the assessed sum of $181,428.85;
2. Contributory negligence is found against the plaintiff and the respective culpabilities are apportioned in the ratio 30 per cent to the plaintiff and 70 per cent to the defendant;
3. After apportionment, judgment for the plaintiff in the amount of $127,000.19;
4. The defendant is to pay the plaintiff’s costs of the proceedings on the ordinary basis unless a party is able to show an entitlement to some other costs order;
5. The exhibits may be returned;
6. Liberty to apply on 7 days’ notice if further or other orders are required.Catchwords: TORTS – motor vehicle accident – negligence admitted – whether contributory negligence has been established; DAMAGES – assessment of claimed heads of damage Legislation Cited: Civil Liability Act 2002, s 5B, s 5C, s 5D, s 5R, s 5S
Evidence Act 1995, s 60, S 135
Motor Accidents Compensation Act 1999, s 126, s 131, s 136, s 138, s 140, s 141Cases Cited: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Miller v Galderisi [2009] NSWCA 353
Penrith City Council v Parks [2004] NSWCA 201
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492
Sampco Pty Ltd v Wurth [2015] NSWCA 117
Solomons v Pallier [2015] NSWCA 266
State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442Category: Principal judgment Parties: Dale Rafferty-Butfield (Plaintiff)
Dana Michelle De Guzm Antonio (Defendant)Representation: Counsel:
Solicitors:
Ms E Welsh (Plaintiff)
Mr J Gracie (Defendant)
Brydens (Plaintiff)
Vardanega Roberts (Defendant)
File Number(s): 2014/360505 Publication restriction: None
Judgment
Table of Contents
Nature of case, factual background and issues
[1] – [3]
Summary of findings
[4] – [5]
Evidence overview
[6] – [8]
Credibility and reliability of testimony
[9] – [16]
The plaintiff
[10]
Mrs Rafferty-Butfield
[11]
Joshua Rafferty-Butfield
[12]
The defendant
[13] – [14]
Ms Tabuan
[15]
Sergeant Dixon
[16]
Facts
[17] – [86]
Plaintiff’s pre-accident circumstances
[18] – [19]
Plaintiff’s most probable circumstances but for injury
[20] – [21]
Events of the afternoon before the accident
[22]
Events during the course of the evening
[23] – [32]
Journey to the accident scene
[33] – [36]
Uncontested admitted facts
[37] – [40]
Injuries
[41] – [42]
Initial treatment
[43] – [51]
Subsequent medical and allied reviews
[52] – [78]
Immediately noticed effects of injuries
[79] –…
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- Rafferty-Butfield v Antonio [2017] NSWDC 2
- Case
- [2017] NSWDC 2
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the plaintiff was guilty of contributory negligence and, if so, the extent of that negligence. The plaintiff argued that the defendant's negligence was the sole cause of the accident, while the defendant contended that the plaintiff's actions also contributed to the incident. The court considered evidence and submissions from both parties regarding the circumstances of the accident, the respective actions of the plaintiff and the defendant, and the potential impact of those actions on the occurrence and severity of the accident.
In its judgment, the court found that the plaintiff was indeed guilty of contributory negligence. It apportioned the respective culpabilities of the parties, attributing 30 per cent of the blame to the plaintiff and 70 per cent to the defendant. The court assessed the total damages claimed by the plaintiff and, after applying the apportionment of negligence, determined the amount to which the plaintiff was entitled. The court awarded the plaintiff $127,000.19, which represented the damages reduced by the plaintiff's share of the blame. Additionally, the court ordered the defendant to pay the plaintiff's costs of the proceedings on the ordinary basis, unless a party could demonstrate entitlement to a different costs order. The exhibits were to be returned, and the parties were granted liberty to apply for further or other orders if necessary.
Orders
Orders of the court
1. Verdict for the plaintiff in the assessed sum of $181,428.85;
2. Contributory negligence is found against the plaintiff and the respective culpabilities are apportioned in the ratio 30 per cent to the plaintiff and 70 per cent to the defendant;
3. After apportionment, judgment for the plaintiff in the amount of $127,000.19;
4. The defendant is to pay the plaintiff’s costs of the proceedings on the ordinary basis unless a party is able to show an entitlement to some other costs order;
5. The exhibits may be returned;
6. Liberty to apply on 7 days’ notice if further or other orders are required.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.