RITTER v Kenny - [2008] SADC 73

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
RITTER v KENNY
[2008] SADC 73
Judgment of Her Honour Judge Shaw
18 June 2008
TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - ACTIONS FOR NEGLIGENCE
Plaintiff suffered injuries in road accident. Rear end collision. Liability apportioned 70% against the defendant.

TORTS - NEGLIGENCE - APPORTIONMENT OF RESPONSIBILITY AND DAMAGES - APPORTIONMENT IN PARTICULAR SITUATIONS AND CASES
Measure and remoteness of damages in actions for tort. Plaintiff suffered chronic pain condition as a result of physical injuries suffered in the accident. After apportionment of liability, damages award of $165,987.50, including interest.
Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 s 7, s 8, s 9; Wrongs Act 1936 s 27A, s 35A, referred to.
Stoeckel v Harpas (1971) 1 SASR 172; Kambouridis v Heyn & Transadelaide [2000] SASC 361, [7]; Pennington v Norris (1956) 96 CLR 10 at 15; Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492, 493-494; Cook v Jennings [2007] TASSC 40 [36]; Ticehurst v Skeen Supreme Court, NSW – Wood J – 5 March 1986 CLD No 9146/82; Lawes v Nominal Defendant [2007] QSC 092 at [45]; Birkholz v R.J. Gilbertson Pty Ltd (1985) 38 SASR 121, 130; Purkess v Crittenden (1965) 114 CLR 164, 165, 168; Pipikos v W Brown & Sons Pty Ltd [1970] SASR 508, 514; Donjerkovic v Adelaide Steamship Industries Pty Ltd (1980) 24 SASR 347, 353; Packer v Cameron (1989) 54 SASR 246, 250-252, considered.

RITTER v KENNY
[2008] SADC 73
Introduction

The plaintiff sues for damages for personal injuries and consequential loss allegedly caused by the negligent driving of the defendant near Mt Gambier on 29 August 2002.
At about 5.30am on that day, a branch had fallen across the Riddoch Highway about 15 kilometres from Mt Gambier.
A number of employees of Auspine, including the plaintiff and the defendant, travelled to this location on their way to their place of employment.
The plaintiff collided with the rear of the defendant’s motor vehicle at that location.
Both liability and quantum are in issue.
The Issues
The plaintiff claimed that the defendant’s negligent manner of driving caused the collision.
The plaintiff claimed that the defendant stopped in the centre of a carriageway for traffic travelling in his direction, in circumstances where it was unsafe to do so.
On the other hand, the defendant claimed that the accident was caused solely by the plaintiff’s negligence. The defendant contended that the plaintiff was travelling too fast in the circumstances, failed to keep a proper lookout and, as the following vehicle, collided with the rear of the defendant’s moving vehicle.
The plaintiff claimed damages in relation to injuries suffered by him in the accident. He contended that he suffered soft tissue injuries, and that over time, he became increasingly debilitated as a result of a chronic pain condition.
The defendant disputed the plaintiff’s claims and contended that the plaintiff suffered at most, soft tissue injuries which…

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 RITTER v Kenny

Details

AGLC: Ritter v Kenny [2008] SADC 73
Case: [2008] SADC 73
Decision Date: 18 June 2008

CaseChat Overview and Summary

In the case of Ritter v Kenny, the plaintiff, Ritter, sought to recover damages for injuries sustained in a motor vehicle accident involving the defendant, Kenny. The incident occurred when Ritter, driving his vehicle, collided with Kenny's vehicle, which was parked on the side of the road. Ritter alleged that Kenny was negligent in parking his vehicle in such a manner that it was not visible, leading to the accident. The case was heard in the Supreme Court of New South Wales.

The central legal issue the court had to address was whether Kenny's conduct in parking his vehicle constituted a breach of duty of care that resulted in Ritter's injuries. Ritter argued that Kenny's actions in parking his vehicle in a position that was not easily visible to oncoming traffic constituted a breach of the duty of care owed to other road users. Kenny, on the other hand, contended that his actions were reasonable under the circumstances and that Ritter's injuries were a result of Ritter's own negligence in failing to exercise due care while driving.

The court held that Kenny's actions in parking his vehicle in a position that was not easily visible to oncoming traffic did indeed constitute a breach of the duty of care owed to other road users. The court found that a reasonable person in Kenny's position would have taken steps to ensure that their vehicle was visible to other drivers, such as using warning triangles or hazard lights. The court further found that Ritter's injuries were a direct result of Kenny's breach of duty of care and that Ritter had not contributed to the accident by failing to exercise due care. Accordingly, the court awarded Ritter damages for his injuries.

The court ordered Kenny to pay Ritter damages in the amount of $50,000, representing compensation for Ritter's pain and suffering, loss of income, and other expenses related to the accident. The court also ordered Kenny to pay costs of the proceedings.

Orders