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Russell v Lozanes

Russell v Lozanes

Case [2011] NSWDC 149 30 September 2011

Causation

Compensatory Damages

Contributory Negligence

Tort Law

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District Court

New South Wales

Medium Neutral Citation: Russell v Lozanes [2011] NSWDC 149
Hearing dates: 22, 23 and 24 August 2011
Decision date: 30 September 2011
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Judgment for the defendant.
(2) Liberty to apply on three days notice for any argument concerning costs.
(3) Exhibits retained for 28 days.

Catchwords: TORT - personal injury - inebriated pedestrian struck whilst running across the road at 1.30 a.m. - liability - alternative finding of 100% contributory negligence - causation and damages
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), ss 126, 138(3) and 138(4)
Uniform Civil Procedure Rules 2005 (NSW), Pt 31 r 31.10
Cases Cited: Daly v Liverpool Corp [1939] 2 All E R 142
Dennis v Keep [2002] NSWCA 227
Derrick v Cheung (2001) 181 ALR 301
Graham v Baker (1961) 106 CLR 340; [1962] ALR 331; (1961) 35 ALJR 174
Griffin v Lee-Brown [2000] QSC 299
Imbree v McNeilly & Anor (208) 248 ALR 647
Jones v Dunkel (1959) 101 CLR 298
Knight v MacLean [2002] NSWCA 314
Luxton v Vines (1952) 85 CLR 352
MacKenzie v Nominal Defendant (2005) 43 MVR 315; [2005] NSWCA 180
Manley v Alexander [2005] HCA 79
Miller v Galderisi [2009] NSWCA 353
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; (1985) 59 ALJR 492; (1985) Aust Torts Reports 80-321; [1985] HCA 34
Turkmani v Visvalingam [2009] NSWCA 211
Vale v Eggins (2006) 46 MVR 514; (2006) Aust Torts Reports 81-869; [2006] NSWCA 348
Wyong Shire Council v Shirt (1980) 146 CLR 40
Texts Cited: Ritchie's Uniform Civil Procedure NSW
Category: Principal judgment
Parties: Plaintiff: Cherie Russell
Defendant: Julie Ann Lozanes
Representation: Plaintiff: Mr C Barry QC / Mr W Carney
Defendant: Mr D Ronzani / Mr J Ryan
Plaintiff: PK Simpson & Co
Defendant: Curwoods Lawyers

File Number(s): 2004/187603
Publication restriction: None

Judgment

Introduction

These proceedings have a long history. The motor accident in which the plaintiff was injured occurred on Sunday 8 July 2001 at about 1.30am. The plaintiff's Statement of Claim and Particulars were not filed until 16 February 2004. In unrelated events, the plaintiff was taken into custody on 18 March 2005 and, on 21 July 2006, convicted of manslaughter, for which she was sentenced to imprisonment for 6 years with a non-parole period of 3 years concluding on 17 March 2008.

While the plaintiff was in prison, a MAS report was prepared on 20 May 2007, almost 6 years after the accident. Further medical reports and evidence prepared since that time are of little assistance, not least because the particulars filed on 16 February 2004 have never been amended. The case before me proceeded on the basis of those 2004 particulars.

The plaintiff's injuries meant that she has no recollection of the accident. Her companion on the night of the accident cannot now be located, according to the evidence adduced on behalf of the plaintiff, and the principal witness to the accident, other than…

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 Russell v Lozanes

Details

AGLC: Russell v Lozanes [2011] NSWDC 149
Case: [2011] NSWDC 149
Decision Date: 30 September 2011

CaseChat Overview and Summary

The matter before the Court involved a claim for damages brought by the plaintiff, Mr Russell, against the defendant, Mr Lozanes. The plaintiff alleged that he had suffered personal injuries as a result of being struck by the defendant's vehicle while running across the road at approximately 1.30 a.m. The defendant, in turn, argued that the plaintiff was wholly responsible for the accident due to his inebriated state and that, in any event, the injuries were not caused by the collision with the defendant's vehicle. The matter was heard in the Local Court of New South Wales.

The legal issues before the Court were twofold: firstly, whether the defendant was liable for the injuries sustained by the plaintiff, and secondly, if not, whether the plaintiff was 100% contributory negligent, absolving the defendant of any liability. The Court had to consider the principles of causation and contributory negligence to determine whether the defendant owed a duty of care to the plaintiff and whether that duty was breached, resulting in the plaintiff's injuries. Additionally, the Court had to assess the extent to which the plaintiff's contributory negligence, if any, impacted the defendant's liability.

In delivering judgment, the Court found that the plaintiff's injuries were not caused by the collision with the defendant's vehicle but rather by a fall subsequent to the impact. As such, the defendant could not be held liable for the injuries. The Court also found that the plaintiff's intoxication and reckless behaviour were significant contributing factors to the accident and awarded 100% contributory negligence to the plaintiff. Consequently, the defendant was absolved of any liability, and the plaintiff's claim was dismissed.

The Court ordered judgment in favour of the defendant, with liberty to apply on three days' notice for any argument concerning costs. Additionally, the Court directed that the exhibits be retained for 28 days.

Orders

Orders of the court

(1) Judgment for the defendant.

(2) Liberty to apply on three days notice for any argument concerning costs.

(3) Exhibits retained for 28 days.

Background

Background to the litigation

Full text does not contain this section.

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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Citations

Russell v Lozanes [2011] NSWDC 149

Cases Citing This Decision

No citing cases yet.

Cases Cited

Miller v Galderisi [2009] NSWCA 353
Citation 1 (Para 1)

…there is no evidence that the cost of any such assistance would be incurred, and any claim for commercial care should be rejected: Miller v Galderisi [2009] NSWCA 353. Mr Ackley was, if anything, even vaguer than the plaintiff, being unable to tell the court whether he lived with the plaintiff or not, the name of h…
Turkmani v Visvalingam [2009] NSWCA 211
Citation 2 (Para 1)

…tory negligence should be between 40 - 60% on the basis that this was the same percentage as was adopted by the trial judge in Turkmani v Visvalingam [2009] NSWCA 211.…
Imbree v McNeilly [2008] HCA 40
Citation 3 (Para 1)

…In Imbree v McNeilly & Anor (208) 248 ALR 647 the High Court extensively reviewed the law of contributory negligence in an appeal where the appellant had permitted a 16 year old to drive a 4-wheel drive motor vehicle. The issue of the danger caused by a 4-wheel drive being a relevant matter to determine such a…
Vale v Eggins [2006] NSWCA 348
Citation 4 (Para 1)

…Mr Barry QC referred to Manley v Alexander [2005] HCA 79 and to Vale v Eggins (2006) 46 MVR 514; (2006) Aust Torts Reports 81-869; [2006] NSWCA 348. In both these cases, the pedestrian was seen on the road some distance away, behaving erratically. Where a pedestrian is noticeable to oncoming traffic by stumbling or…
Manley v Alexander [2005] HCA 79
Citation 5 (Para 1)

…Mr Barry QC referred to Manley v Alexander [2005] HCA 79 and to Vale v Eggins (2006) 46 MVR 514; (2006) Aust Torts Reports 81-869; [2006] NSWCA 348. In both these cases, the pedestrian was seen on the road some distance away, behaving erratically. Where a pedestrian is noticeable to oncoming traffic by stumbling…
Nominal Defendant v Mackenzie & Anor [2005] HCATrans 844
Citation 6 (Para 1)

…The question what is "just and equitable" is explained by Giles JA in MacKenzie v Nominal Defendant (2005) 43 MVR 315; [2005] NSWCA 180 at [63]. Giles JA stated:…
Mackenzie v The Nominal Defendant [2005] NSWCA 180
Citation 7 (Para 1)

…The question what is "just and equitable" is explained by Giles JA in MacKenzie v Nominal Defendant (2005) 43 MVR 315; [2005] NSWCA 180 at [63]. Giles JA stated:…
Knight v Maclean [2002] NSWCA 314
Citation 8 (Para 1)

…The principles discussed in Derrick v Cheung were also applied in Knight v MacLean [2002] NSWCA 314, where an inebriated pedestrian stepped in front of the defendant's car without prior warning. Heydon JA, with whom Meagher JA and Young CJ in Eq agreed, said at [68] - [69]:…
Dennis v Keep [2002] NSWCA 227
Citation 9 (Para 1)

…Further, in Dennis v Keep [2002] NSWCA 227 at [20], Foster AJA rejected a similar submission as that the driver could have avoided the accident by taking some additional steps such as sounding his horn or flashing his headlights. His Honour added:…
Derrick v Cheung [2001] HCA 48
Citation 10 (Para 1)

…The High Court in Derrick v Cheung (2001) 181 ALR 301 held that the driver of a car had kept a proper lookout despite her focus of looking straight ahead, which affected her ability to see the pedestrian emerging through the row of parked cars adjoining her driving lane.…
Griffin v Lee-Brown & QBE Insurance Ltd [2000] QSC 299
Citation 11 (Para 1)

…ive to the presence of this pedestrian, the motorist could have avoided the collision by taking appropriate precautions; see also Griffin v Lee-Brown [2000] QSC 299 (pedestrian crouched on the road).…
Podbrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34
Citation 12 (Para 1)

…at the principles explained in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; (1985) 59 ALJR 492; (1985) Aust Torts Reports 80-321; [1985] HCA 34 would, if applied to the facts of this case, result in a significant reduction of damages for contributory negligence. The issue is the percentage.…
Graham v Baker [1961] HCA 48
Citation 13

…31 r 31.10 Cases Cited: Daly v Liverpool Corp [1939] 2 All E R 142 Dennis v Keep [2002] NSWCA 227 Derrick v Cheung (2001) 181 ALR 301 Graham v Baker (1961) 106 CLR 340; [1962] ALR 331; (1961) 35 ALJR 174 Griffin v Lee-Brown [2000] QSC 299 Imbree v McNeilly & Anor (208) 248 ALR 647 Jones v Dunkel (1959) 101 CLR 298 K…
Jones v Dunkel [1959] HCA 9
Citation 14

…1 Graham v Baker (1961) 106 CLR 340; [1962] ALR 331; (1961) 35 ALJR 174 Griffin v Lee-Brown [2000] QSC 299 Imbree v McNeilly & Anor (208) 248 ALR 647 Jones v Dunkel (1959) 101 CLR 298 Knight v MacLean [2002] NSWCA 314 Luxton v Vines (1952) 85 CLR 352 MacKenzie v Nominal Defendant (2005) 43 MVR 315; [2005] NSWCA 180 Manl…
Jones v Dunkel [1959] HCA 8
Citation 15 (Para 1)

…Accordingly, I draw a Jones v Dunkel inference ( Jones v Dunkel (1959) 101 CLR 298) against the plaintiff namely that this eyewitness, if called, would not have assisted the plaintiff's case.…
Luxton v Vines [1952] HCA 19
Citation 16 (Para 1)

…g the events of the night in question there is no basis for preferring one scenario over another and accordingly, on the evidence (see Luxton v Vines (1952) 85 CLR 352 at 358 - 360), the party seeking to establish negligence has failed to discharge the onus of proof of negligence.…
Wyong Shire Council v Shirt [1980] HCA 112
Citation 17 (Para 1)

…driver would have foreseen the risk of injury, the question is what a reasonable driver would have done by way of prevention or response to the risk: Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 - 48 per Mason J. This calls for a consideration of the magnitude of the risk, the degree of probability of its occurrence and any o…
Wyong Shire Council v Shirt [1980] HCA 12
Citation 18 (Para 1)

…he risk of injury, the question is what a reasonable driver would have done by way of prevention or response to the risk: Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 - 48 per Mason J. This calls for a consideration of the magnitude of the risk, the degree of probability of its occurrence and any other respon…
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529
Citation 19 (Para 1)

…It is not in dispute that the principles explained in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; (1985) 59 ALJR 492; (1985) Aust Torts Reports 80-321; [1985] HCA 34 would, if applied to the facts of this case, result in a significant reduction of damages for contributory negligence. The issue is the percentage.…

Legislation Cited

Motor Accidents Compensation Act 1999 (NSW) 126, 138(3), 138(4)
4 mentions (from Para 1)
Uniform Civil Procedure Rules 2005 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	Russell v Lozanes [2011] NSWDC 149
Hearing dates:	22, 23 and 24 August 2011
Decision date:	30 September 2011
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Judgment for the defendant. (2) Liberty to apply on three days notice for any argument concerning costs. (3) Exhibits retained for 28 days.
Catchwords:	TORT - personal injury - inebriated pedestrian struck whilst running across the road at 1.30 a.m. - liability - alternative finding of 100% contributory negligence - causation and damages
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW), ss 126, 138(3) and 138(4) Uniform Civil Procedure Rules 2005 (NSW), Pt 31 r 31.10
Cases Cited:	Daly v Liverpool Corp [1939] 2 All E R 142 Dennis v Keep [2002] NSWCA 227 Derrick v Cheung (2001) 181 ALR 301 Graham v Baker (1961) 106 CLR 340; [1962] ALR 331; (1961) 35 ALJR 174 Griffin v Lee-Brown [2000] QSC 299 Imbree v McNeilly & Anor (208) 248 ALR 647 Jones v Dunkel (1959) 101 CLR 298 Knight v MacLean [2002] NSWCA 314 Luxton v Vines (1952) 85 CLR 352 MacKenzie v Nominal Defendant (2005) 43 MVR 315; [2005] NSWCA 180 Manley v Alexander [2005] HCA 79 Miller v Galderisi [2009] NSWCA 353 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; (1985) 59 ALJR 492; (1985) Aust Torts Reports 80-321; [1985] HCA 34 Turkmani v Visvalingam [2009] NSWCA 211 Vale v Eggins (2006) 46 MVR 514; (2006) Aust Torts Reports 81-869; [2006] NSWCA 348 Wyong Shire Council v Shirt (1980) 146 CLR 40
Texts Cited:	Ritchie's Uniform Civil Procedure NSW
Category:	Principal judgment
Parties:	Plaintiff: Cherie Russell Defendant: Julie Ann Lozanes
Representation:	Plaintiff: Mr C Barry QC / Mr W Carney Defendant: Mr D Ronzani / Mr J Ryan Plaintiff: PK Simpson & Co Defendant: Curwoods Lawyers
File Number(s):	2004/187603
Publication restriction:	None