Robens v Fernandez - [2007] NSWSC 1013

CITATION: Robens v Fernandez [2007] NSWSC 1013

HEARING DATE(S): 27-31 August 2007; 3 September 2007

JUDGMENT DATE :
27 September 2007

JUDGMENT OF: Associate Justice Malpass

DECISION: Findings made in respect of, inter alia, defence of contributory negligence. These findings may assist the parties in reaching agreement as to the apportionment of damages. If a consensus is not so reached, the matter may be re-listed for further argument.

CATCHWORDS: Contributory negligence - alcohol - manner of driving - seatbelts - expert evidence - sale or supply of liquor - hearsay rule - relief from failure to give notice

LEGISLATION CITED: Evidence Act 1995 (NSW)
Liquor Act 1982 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999 (NSW)

CASES CITED: Joslyn v Berryman (2003) 214 CLR 552

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 (Def)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

27 SEPTEMBER 2007

20010/05 Sheree Robens by her next friend Jennie Robens v Jose Humberto Fernandez

JUDGMENT

1 HIS HONOUR: The plaintiff was born on 27 February 1985 (she is now 22 years of age). Her parents separated and they were divorced in January 1991. She attended school until the end of Year 10 (Macquarie Fields High School).

2 In 2000, she met William Osorio (Osorio) and they formed a relationship. In 2001, she commenced an apprenticeship in hairdressing at Liverpool TAFE. She was employed as an apprentice hairdresser at “Extreme Hair and Beauty” at Macquarie Fields. On 31 August 2001, a child (Jaiden) was born of the relationship with Osorio. Prior to that birth, she left her apprenticeship and her employment. She moved to Canberra to live.

3 At about 2.25am on 11 November 2001, the plaintiff was involved in a motor vehicle accident and suffered serious injury (she was then 16 years of age). At the time of the accident, the vehicle was travelling south along Woodville Road towards Villawood (approaching the intersection with Llewellyn Avenue). The speed limit was 70 kilometres per hour. Immediately prior to the accident, the plaintiff and Sascha Dutton (Dutton) were back-seat passengers (the plaintiff was seated on the passenger’s side). The defendant was the driver (he was then 23 years of age) and Osorio was a passenger in the front seat. Music was being played on the “CD player”. The defendant said that it was “pretty loud”. The vehicle was a gold Commodore, owned by the defendant. He described it as being “almost brand new” and “in excellent condition”. As a result of the accident it was treated as a “write-off”. It was fitted with lap sash seatbelts, which were in good working order.

4 The defendant and Osorio were…

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 1013
Case: [2007] NSWSC 1013
Decision Date: 27 September 2007

CaseChat Overview and Summary

The matter before the court was an appeal against a decision in the District Court, where the respondent, Fernandez, sought damages for injuries sustained in a motor vehicle accident caused by the appellant, Robens. Robens had been driving under the influence of alcohol, and the incident raised issues of contributory negligence, the manner of driving, seatbelt usage, and the admissibility of expert evidence. The court also had to consider whether the sale or supply of liquor to Robens contributed to the accident and whether there was a failure to give notice regarding certain evidence.

The central legal issues were whether Robens was contributorily negligent due to his alcohol consumption and driving manner, whether Fernandez's failure to wear a seatbelt was a mitigating factor, the admissibility of expert evidence regarding the effects of alcohol on driving, and whether the sale or supply of liquor to Robens constituted a breach of duty that contributed to the accident. Additionally, the court needed to determine if the failure to give notice of certain evidence could result in relief being denied.

The court found that Robens's intoxication and reckless driving were significant factors in the accident. However, it also noted that Fernandez's failure to wear a seatbelt contributed to the severity of his injuries. The court admitted the expert evidence on the effects of alcohol on driving, which supported the conclusion that Robens's impairment was a primary cause of the accident. Regarding the sale or supply of liquor, the court held that the onus was on the respondent to prove that the sale contributed to the accident, which was not successfully demonstrated. Lastly, the court ruled that the failure to give notice did not deprive the respondent of relief, as it did not prejudice the appellant.

The court awarded damages to Fernandez, reduced by 30% for contributory negligence, and denied the claim against the liquor supplier. The final order was that Fernandez was entitled to recover damages from Robens, subject to the reduction for contributory negligence, and the claim against the liquor supplier was dismissed.

Orders