Rajcevic v Downing - [2008] NSWDC 98

CITATION: Rajcevic v Downing [2008] NSWDC 98

HEARING DATE(S): 4, 5 and 6 March and 30 April 2008

JUDGMENT DATE:
30 April 2008

JURISDICTION: District Court Civil Jurisdiction

JUDGMENT OF: Johnstone DCJ at 1

DECISION: Judgment for the plaintiff for $254,999.40
The defendants are to pay the plaintiff’s party/party costs; such costs to be assessed on the ordinary basis up to 26 February 2008 and thereafter on an indemnity basis

CATCHWORDS: NEGLIGENCE – motor accident – the plaintiff was a passenger in rear of vehicle being driven on a building site – the driver took an unsafe shortcut involving a foreseeable risk of injury - contributory negligence not proven in that no seatbelt was available for the plaintiff’s use - DAMAGES – assessment of past lost earnings and diminution of future earning capacity having regard to pre-existing orthopaedic and psychological conditions

LEGISLATION CITED: Motor Accidents Compensation Act 1999: s 112(1): s 126, s 131
Workers Compensation Act 1987 (NSW): s 151Z(2)

CASES CITED: Fox v Leighton Contractors Pty Ltd [2008] NSWCA 23 at [47] - [48]

PARTIES: Cedomir Rajcevic (Plaintiff)
Greg Downing (First defendant)
Abigroup Contractors Pty Ltd (Second defendant)

FILE NUMBER(S): 1255/07

COUNSEL: Mr J Keesing (Plaintiff)
Mr R O’Keefe (Defendants)

SOLICITORS: Petrovich Accident Lawyers (Plaintiff)
Rankin Nathan Lawyers (Defendants)

The proceedings and the issues
1. Cedomir Rajcevic was injured in a motor accident on 7 April 2005 when he was a passenger seated in the rear of a vehicle driven by the first defendant, Greg Downing. The second defendant, Abigroup Contractors, was the registered owner of the vehicle. Mr Rajcevic was working for Abigroup on hire from his employer, Telum Pty Ltd. He commenced these proceedings for damages. The defendants denied any breach of duty and alleged contributory negligence, asserting that Mr Rajcevic had failed to wear the seat belt provided.

2. Mr Rajcevic alleged that he sustained injuries to his head, neck and back, resulting in continuing and permanently disabling symptoms, and that he also developed a reactive psychological condition that persists. He has not worked since the accident and alleges that he is effectively unemployable for the rest of his working life. The defendants deny that Mr Rajcevic suffered any major or permanently disabling injury. They say that the effects of the accident were minor and temporary, and affected his earning capacity for a short period only.

3. The damages claimed by Mr Rajcevic were for out-of-pocket expenses and economic loss (as to the past and for the future). A claim for domestic assistance was abandoned. He is not entitled to damages for non-economic loss. He was assessed by the Medical Assessment Service (MAS) of the Motor Accidents Authority of NSW as having no permanent impairment as a result of his injuries. He did not, therefore, satisfy the requisite more than 10% threshold for an award of damages for non-economic loss: s 131 of the Motor Accidents Compensation Act 1999.

4. The principal issues for determination were:

4.1 Was Mr Downing negligent?

4.2 Was Mr…

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 Rajcevic v Downing

Details

AGLC: Rajcevic v Downing [2008] NSWDC 98
Case: [2008] NSWDC 98
Decision Date: 30 April 2008

CaseChat Overview and Summary

The plaintiff, Rajcevic, was a passenger in the rear of a vehicle operated by the defendant Downing on a building site. The vehicle took an unsafe shortcut, resulting in an accident where the plaintiff suffered injuries. The plaintiff sought damages for negligence, asserting that the defendant took a shortcut that presented a foreseeable risk of injury. The plaintiff also argued that contributory negligence was not applicable as there was no seatbelt available for use. The defendants disputed liability and argued contributory negligence on the plaintiff's part.

The court had to decide whether the defendant was negligent in taking the shortcut and whether the plaintiff's contributory negligence was proven. The court considered the foreseeability of the risk, the measures taken by the plaintiff to mitigate the risk, and the availability of a seatbelt. The court found that the defendant's decision to take the shortcut was negligent, given the foreseeable risk of injury. The court also determined that the plaintiff's contributory negligence was not proven as there was no seatbelt available for the plaintiff's use.

The court assessed the plaintiff's damages, taking into account the pre-existing orthopaedic and psychological conditions. The court awarded the plaintiff $254,999.40 in damages, reflecting the past lost earnings and the diminution of future earning capacity. The court ordered the defendants to pay the plaintiff's costs, to be assessed on the ordinary basis up to 26 February 2008 and thereafter on an indemnity basis. The court's judgment recognised the defendant's negligence and the plaintiff's entitlement to compensation, while also acknowledging the impact of the plaintiff's pre-existing conditions on the assessment of damages.

Orders

Orders of the court

Judgment for the plaintiff for $254,999.40 The defendants are to pay the plaintiff's party/party costs; such costs to be assessed on the ordinary basis up to 26 February 2008 and thereafter on an indemnity basis

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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CITATION:	Rajcevic v Downing [2008] NSWDC 98
HEARING DATE(S):	4, 5 and 6 March and 30 April 2008
JUDGMENT DATE:	30 April 2008
JURISDICTION:	District Court Civil Jurisdiction
JUDGMENT OF:	Johnstone DCJ at 1
DECISION:	Judgment for the plaintiff for $254,999.40 The defendants are to pay the plaintiff’s party/party costs; such costs to be assessed on the ordinary basis up to 26 February 2008 and thereafter on an indemnity basis
CATCHWORDS:	NEGLIGENCE – motor accident – the plaintiff was a passenger in rear of vehicle being driven on a building site – the driver took an unsafe shortcut involving a foreseeable risk of injury - contributory negligence not proven in that no seatbelt was available for the plaintiff’s use - DAMAGES – assessment of past lost earnings and diminution of future earning capacity having regard to pre-existing orthopaedic and psychological conditions
LEGISLATION CITED:	Motor Accidents Compensation Act 1999: s 112(1): s 126, s 131 Workers Compensation Act 1987 (NSW): s 151Z(2)
CASES CITED:	Fox v Leighton Contractors Pty Ltd [2008] NSWCA 23 at [47] - [48]
PARTIES:	Cedomir Rajcevic (Plaintiff) Greg Downing (First defendant) Abigroup Contractors Pty Ltd (Second defendant)
FILE NUMBER(S):	1255/07
COUNSEL:	Mr J Keesing (Plaintiff) Mr R O’Keefe (Defendants)
SOLICITORS:	Petrovich Accident Lawyers (Plaintiff) Rankin Nathan Lawyers (Defendants)