Seselja v Reardon - [2020] ACTSC 167

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Seselja v Reardon
Citation:	[2020] ACTSC 167
Hearing Dates:	28 April 2020 – 1 May 2020; 14 May 2020
DecisionDate:	26 June 2020
Before:	Crowe AJ
Decision:	See [353]
Catchwords:	TORTS – MOTOR VEHICLE ACCIDENT – Whether the first defendant breached his duty of care – whether the first defendant was acting in the ‘agony of the moment’ – where a breach of duty was found DAMAGES – PERSONAL INJURY – Compensation – where the plaintiff suffered an injury to her right hip due to the particular circumstances of the accident
Legislation Cited:	Civil Law (Wrongs) Act 2002 (ACT) – ss 42, 43, 44, 100, pt 4.2 Court Procedure Rules 2006 (ACT) – r 1619
Cases Cited:	Abdallah v Newton (1998) 28 MVR 364 Antypas v McKeon [2001] NSWCA 417; 35 MVR 121 Byrnes v Snare (1986) 66 ALR 296; 4 MVR 97 Cockburn v Jacobsen [2017] ACTSC 380 Griffiths v Kerkemeyer (1977) 139 CLR 161 Grincelis v House [2002] HCA 42; 201 CLR 321 Imbree v McNeilly [2008] HCA 40; 236 CLR 510 Leishman v Thomas (1957) 75 WN (NSW) 173 Marien v Gardner [2013] NSWCA 396; 66 MVR 1 Ryrie v Tanner (No 2) [2020] ACTSC 104 Skripal v The State of Western Australia (Unreported, Western Australian Court of Appeal, Murray AJA, Franklyn J and Steytler P, 19 May 1995)
Parties:	Sophie Seselja (Plaintiff) Linden Reardon (First Defendant) Insurance Australia Limited Trading as NRMA Insurance (ACN: 000 016 722) (Second Defendant)
Representation:	Counsel A Muller (Plaintiff) B Wilson (First and Second Defendants)
Solicitors Maliganis Edwards Johnson (Plaintiff) HWL Ebsworth Lawyers (First and Second Defendants)
File Number:	SC 244 of 2019

Crowe AJ:

Introduction

This case concerns the consequences of criminal conduct for the direct and indirect victims. As will be seen from what follows, it also exemplifies the difficulties in reconciling differences in human perception and the frailties of memory.

Because many of the lay witnesses in this matter have the same surnames I will, without meaning any disrespect, refer to them by their given names.

At around 8:30pm on the evening of Monday 13 July 2015, Linden Reardon (the first defendant), who was then 17 years of age, was driving his mother’s Mitsubishi Lancer (the Lancer) in an easterly direction on Isabella Drive, Monash in the ACT. A friend of the first defendant, Kyle Mundy (then aged 16) was seated in the front passenger seat and in the rear were the first defendant’s brother Luke (then aged 14) and sister Georgia (then aged 16). The group had been to watch a movie at the Tuggeranong Shopping Centre together with the first defendant’s older brother James, his partner Rebecca Coulson and James’ 5-year-old daughter Ella. James, Rebecca and Ella were travelling ahead of the Lancer in a Toyota Kluger (the Kluger).

At a point between the roundabout intersections of Isabella Drive and Drakeford Drive (the Drakeford…

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 Seselja v Reardon

Details

AGLC: Seselja v Reardon [2020] ACTSC 167
Case: [2020] ACTSC 167
Decision Date: 26 June 2020

CaseChat Overview and Summary

The case of Seselja v Reardon involved the plaintiff, Seselja, suing the first and second defendants, Reardon and another, over a motor vehicle accident that resulted in her suffering injuries. The dispute centered on whether the first defendant breached his duty of care during the accident and, if so, whether this breach was due to actions taken in the ‘agony of the moment’. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the first defendant was negligent in the moments leading up to the collision. The court had to determine if his actions, which may have contributed to the accident, were taken in a moment of panic or if they were a result of a failure to exercise reasonable care. Another issue was the extent of Seselja’s injuries and the appropriate level of compensation for her personal injury, specifically to her right hip, which was exacerbated by the circumstances of the accident.

In delivering the judgment, the court found that the first defendant did indeed breach his duty of care. The court concluded that his actions were not taken in the ‘agony of the moment’ but rather were the result of a failure to observe the traffic conditions adequately. The court examined the evidence and circumstances surrounding the accident, including the behaviour of both drivers, to reach this determination. Regarding the damages, the court assessed the extent of Seselja’s injuries and considered the impact on her quality of life, ultimately awarding compensation for her personal injury.

The court ordered that the first defendant pay compensation to the plaintiff for her injuries, including those to her right hip. The precise amount of damages was determined based on the evidence presented and the court’s assessment of Seselja’s losses and suffering. This decision underscores the importance of exercising due care while driving and the need for thorough assessment of injuries and damages in personal injury claims.

Orders

Orders of the court

See [353]

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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