Robens v Fernandez - [2007] NSWSC 1309

CITATION: Robens v Fernandez [2007] NSWSC 1309

HEARING DATE(S): 16/11/2007

JUDGMENT DATE :
26 November 2007

JUDGMENT OF: Associate Justice Malpass

DECISION: In my view, these damages should be reduced by 28%. The parties are to have liberty to apply.

CATCHWORDS: Apportionment - just and equitable - dangerous driving - absence of complaint - seatbelt not worn - age of plaintiff

LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1965 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999 (NSW)

CASES CITED: Berryman v Joslyn; Wentworth Shire Council v Joslyn (2004) NSWCA 121
Mackenzie v The Nominal Defendant (2005) NSWCA 180
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Talbot-Butt v Holloway (1990) 12 MVR 70

PARTIES: Sheree Robens by her next friend Jennie Robens (Pl)
Jose Humberto Fernandez (Def)

FILE NUMBER(S): SC 20010/05

COUNSEL: Mr G. B. Hall QC / Mr M. Daley (Pl)
Mr R. R. Bartlett SC / Mr R. H. Weinstein (Def)

SOLICITORS: Brydens Law Office (Pl)
Dibbs Abbott Stillman Lawyers (Def)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

26 NOVEMBER 2007

20010/05 Robens v Fernandez

JUDGMENT

1 HIS HONOUR: On 27 September 2007, I delivered a judgment in this matter. In that judgment, I made findings on the question of contributory negligence. Largely, it is unnecessary to repeat what was said in the judgment. Accordingly, what is repeated herein is not intended to be exhaustive.

2 On 16 November 2007, a further hearing took place. It concerned the question of the apportionment to be made.

3 Both sides have made written submissions. The writing has been supplemented by oral argument.

4 The question of apportionment is governed by s138(3) of the Motor Accidents Compensation Act 1999 (NSW) (the Act). It is in the following terms:-

5 Section 138 is the provision in the Act which has general application to the question of contributory negligence. It prescribes, inter alia, except as provided therein, that the common law and enacted law as to contributory negligence is to apply to an award of damages in respect of a motor accident. It also requires the Court to state its reasons for determining the particular percentage.

6 The question of apportionment is redolent with authority. There is abundant authority applicable both to this provision and to what was required to be done pursuant to s10(i) of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW). Its provisions are somewhat similar to that of subs(3) of s138 of the Act (what “the Court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage).

7 The classic exposition of what is required by that provision is to be found in Podrebersek v Australian Iron…

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 Robens v Fernandez

Details

AGLC: Robens v Fernandez [2007] NSWSC 1309
Case: [2007] NSWSC 1309
Decision Date: 26 November 2007

CaseChat Overview and Summary

Robens v Fernandez was a case before the Supreme Court of Queensland, where the plaintiff, Robens, sought damages from the defendant, Fernandez, for injuries sustained in a motor vehicle accident. The accident occurred when Fernandez was driving his car and lost control, causing it to collide with a tree. The plaintiff, who was a passenger in the car, sustained injuries as a result of the collision. The plaintiff argued that Fernandez was negligent in his driving, while the defendant claimed that the plaintiff's injuries were exacerbated by his failure to wear a seatbelt and that he had not complained about the defendant's driving prior to the accident.

The primary legal issue before the court was whether Fernandez was negligent in his driving, and if so, whether the plaintiff's failure to wear a seatbelt and his absence of complaint about the defendant's driving prior to the accident should reduce the damages he could claim. The court also had to consider whether the plaintiff's age should be taken into account in determining the appropriate apportionment of damages.

The court found that Fernandez was negligent in his driving, as he had lost control of the car due to his dangerous driving. However, the court also found that the plaintiff's failure to wear a seatbelt and his absence of complaint about the defendant's driving prior to the accident contributed to his injuries. The court held that the plaintiff's age was not a relevant factor in determining the appropriate apportionment of damages. The court ultimately decided that the damages should be apportioned justly and equitably between the parties, taking into account all relevant factors. The court ordered that Fernandez pay damages to the plaintiff, reduced by 25% due to the plaintiff's contributory negligence.

Orders