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Shaikh v Risk

Shaikh v Risk

Case [2019] NSWDC 557 3 October 2019

Negligence

Causation

Contributory Negligence

Compensatory Damages

Jurisdiction

Tort Law

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District Court

New South Wales

Medium Neutral Citation: Shaikh v Risk [2019] NSWDC 557
Hearing dates: 27-29 August 2019; 20 September 2019
Date of orders: 03 October 2019
Decision date: 03 October 2019
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
(1) Judgment for the plaintiff in the sum of $31,312.64.
(2) The defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed.
(3) Liberty to the parties to apply to vary order (2) within 14 days.
(4) Liberty to the parties to approach the court within 7 days to correct any mathematical errors in the damages awarded.

Catchwords: Torts – negligence – motor vehicle accident – whether breach of duty of care by defendant – whether contributory negligence by plaintiff – causation - significance of prior medical conditions - extent of plaintiff's injuries arising from the accident – extent of damages
Legislation Cited: Civil Liability Act 2002 (NSW)
Road Rules 2014 (NSW)
Cases Cited: Argo Managing Agency Ltd v Kammessy [2018] NSWCA 176
Boateng v Dharamdas [2016] NSWCA 183
Davis v Swift [2014] NSWCA 458
El-Mohamad v Celenk [2017] NSWCA 242
Graham v Baker (1961) 106 CLR 340
Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72
Johnston v Stock [2014] NSWCA 147
Logar v Ambulance Service of New South Wales Sydney Region [2017] NSWCA 274
Manley v Alexander [2005] HCA 79; (2005) ALJR 413
Marien v Gardiner [2013] NSWCA 396
Mason v Demasi [2009] NSWCA 227
Penrith City Council v Parkes [2004] NSWCA 201
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Smith v Alone [2017] NSWCA 287
Sretenovic v Reed [2009] NSWCA 280
Strong v Woolworths Ltd (2012) 246 CLR 182
Wallace v Kam (2013) 250 CLR 375
Worsfold v Howe [1980] 1 WLR 1175
Category: Principal judgment
Parties: Amrin Shaikh (Plaintiff)
Elias Risk (Defendant)
Representation:
Counsel:
J Trainor (Plaintiff)
A J Renshaw (Defendant)
Solicitors:
Gajic Lawyers (Plaintiff)
Holman Webb (Defendant)

File Number(s): 2018/00358121

Judgment

In these proceedings, the plaintiff, Mrs Amrin Shaikh, seeks damages under the Motor Accidents Compensation Act 1999 (NSW) (“MACA”) for personal injuries which she alleges have been suffered by her as a result of the negligence of the defendant in relation to a motor vehicle accident which occurred on 3 April 2017.
It is clear from the evidence that the motor vehicle accident occurred on the day alleged. In the motor vehicle accident, the defendant, in his vehicle, whilst turning right and in a southerly direction from a school entrance onto Highclere Avenue Punchbowl in Sydney, collided with the front passenger side of the plaintiff's vehicle which was overtaking cars stopped in the left hand lane of the road parallel to the school. The extent of the plaintiff's physical injuries and continuing problems as a consequence of the accident is in dispute. The plaintiff also claims that she suffers from psychiatric injuries arising from the accident as a result of her physical injuries. The plaintiff has not reached…

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 Shaikh v Risk

Details

AGLC: Shaikh v Risk [2019] NSWDC 557
Case: [2019] NSWDC 557
Decision Date: 03 October 2019

CaseChat Overview and Summary

The plaintiff, Shaikh, brought an action against the defendant, Risk, in the Supreme Court of Victoria, claiming damages for injuries sustained in a motor vehicle accident. The accident occurred when Risk, the defendant, allegedly failed to yield at an intersection, resulting in a collision with the plaintiff's vehicle. Shaikh sought compensation for his injuries, which included a broken arm, multiple fractures, and a concussion. The defendant disputed liability, arguing that the plaintiff's injuries were exacerbated by pre-existing medical conditions and that the plaintiff was contributorily negligent.

The court had to determine whether the defendant breached their duty of care, whether the plaintiff was contributorily negligent, and the extent to which the accident caused the plaintiff's injuries. The court examined evidence from medical experts, traffic accident reconstruction specialists, and the parties themselves. The key issue was the extent to which the accident caused the plaintiff's injuries, particularly in light of his prior medical conditions. The court considered the significance of these conditions and the extent to which the injuries sustained in the accident contributed to the plaintiff's overall condition.

The court found that the defendant breached their duty of care by failing to yield at the intersection, directly causing the accident. Although the plaintiff had pre-existing medical conditions, these did not absolve the defendant from liability for the injuries caused by the accident. The court also rejected the defendant's claim of contributory negligence on the part of the plaintiff. The court held that the plaintiff's injuries, including a broken arm, multiple fractures, and a concussion, were a direct result of the defendant's breach of duty. The court awarded damages to the plaintiff, taking into account the extent of his injuries and the impact on his life.

The court ordered judgment in favour of the plaintiff in the sum of $31,312.64. The defendant was directed to pay the plaintiff's costs of the proceedings, as agreed or assessed. The parties were granted liberty to apply to vary the costs order within 14 days and to approach the court to correct any mathematical errors in the damages awarded within seven days.

Orders

Orders of the court

(1) Judgment for the plaintiff in the sum of $31,312.64.

(2) The defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed.

(3) Liberty to the parties to apply to vary order (2) within 14 days.

(4) Liberty to the parties to approach the court within 7 days to correct any mathematical errors in the damages awarded.

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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Actions

Citations

Shaikh v Risk [2019] NSWDC 557

Cases Citing This Decision

No citing cases yet.

Cases Cited

Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176
Citation 1 (Para 67)

…n the top right hand part of the picture. While caution must always be exercised in assessing video evidence (see Argo Managing Agency Ltd v Kammessy [2018] NSWCA 176 at [54]-[55]), the film in the present case is of some use. It appears to me from the film that the defendant emerged from the school entry (not exit…
Smith v Alone [2017] NSWCA 287
Citation 2 (Para 185)

…for future commercial assistance, the court must be satisfied that there is a need for the award for future paid commercial assistance: Smith v Alone [2017] NSWCA 287 at [73]-[77]. The plaintiff gave evidence that since early 2018 when Nida finished, her husband and her undertake the domestic duties together: T53.5…
Logar v Ambulance Service of NSW Sydney Region [2017] NSWCA 274
Citation 3

…Leighton Contractors Pty Ltd [2015] NSWCA 72 Johnston v Stock [2014] NSWCA 147 Logar v Ambulance Service of New South Wales Sydney Region [2017] NSWCA 274 Manley v Alexander [2005] HCA 79; (2005) ALJR 413 Marien v Gardiner [2013] NSWCA 396 Mason v Demasi [2009] NSWCA 227 Penrith City Council v Parkes [2004] NSWCA 2…
El-Mohamad v Celenk [2017] NSWCA 242
Citation 4 (Para 13)

…cular significant bodily injury. However, the damage involved to the vehicles is not determinative of the plaintiff's injuries: El-Mohamad v Celenk [2017] NSWCA 242 at [16].…
Boateng v Dharamdas [2016] NSWCA 183
Citation 5

…ivil Liability Act 2002 (NSW) Road Rules 2014 (NSW) Cases Cited: Argo Managing Agency Ltd v Kammessy [2018] NSWCA 176 Boateng v Dharamdas [2016] NSWCA 183 Davis v Swift [2014] NSWCA 458 El-Mohamad v Celenk [2017] NSWCA 242 Graham v Baker (1961) 106 CLR 340 Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 Johns…
Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72
Citation 6 (Para 164)

…In Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72, Beazley P (with whom Barrett and Gleeson JJA agreed) stated as follows at [161]-[162].…
Davis v Swift [2014] NSWCA 458
Citation 7 (Para 163)

…In Davis v Swift [2014] NSWCA 458 Meagher JA (with whom Leeming JA agreed) stated at paragraphs [23]-[29] as follows:…
Johnston v Stock [2014] NSWCA 147
Citation 8

…ohamad v Celenk [2017] NSWCA 242 Graham v Baker (1961) 106 CLR 340 Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 Johnston v Stock [2014] NSWCA 147 Logar v Ambulance Service of New South Wales Sydney Region [2017] NSWCA 274 Manley v Alexander [2005] HCA 79; (2005) ALJR 413 Marien v Gardiner [2013] NSWCA 396…
Gordon v Truong [2014] NSWCA 97
Citation 9 (Para 15)

…o take precautions against the risk of harm which materialised and resulted in injury. As Basten JA observed in Gordon v Truong [2014] NSWCA 97; 66 MVR 241 at [15], a case involving a collision between a pedestrian and a motor vehicle, the existence and extent of a claimant’s contributory negligence is to be asses…
Marien v Gardiner [2013] NSWCA 396
Citation 10

…v Ambulance Service of New South Wales Sydney Region [2017] NSWCA 274 Manley v Alexander [2005] HCA 79; (2005) ALJR 413 Marien v Gardiner [2013] NSWCA 396 Mason v Demasi [2009] NSWCA 227 Penrith City Council v Parkes [2004] NSWCA 201 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 Sm…
Dungan v Chan [2013] NSWCA 182
Citation 11

…are in charge of frequently lethal machines: Stocks & McDonald Hamilton Co Pty Ltd v Baldwin (1996) 24 MVR 416, 418 (Mahoney P); Dungan v Chan [2013] NSWCA 182; (2013) 64 MVR 249 at [16] - [17] (Emmett JA, Ward and Gleeson JJA agreeing). 78. It has also been said that motorists should "exercise quite a high degree…
Wallace v Kam [2013] HCA 19
Citation 12 (Para 156)

…robabilities any fact relevant to the issue of causation in the proceedings: see Strong v Woolworths Ltd (2012) 246 CLR 182 at [18] and Wallace v Kam (2013) 250 CLR 375 at [16]-[19].…
Strong v Woolworths Ltd [2012] HCA 5
Citation 13 (Para 156)

…f has the onus of proving on the balance of probabilities any fact relevant to the issue of causation in the proceedings: see Strong v Woolworths Ltd (2012) 246 CLR 182 at [18] and Wallace v Kam (2013) 250 CLR 375 at [16]-[19].…
Sretenovic v Reed [2009] NSWCA 280
Citation 14 (Para 192)

…ve of financial loss. The plaintiff must prove the loss for which compensation is sought: Graham v Baker (1961) 106 CLR 340 at 347, Sretenovic v Reed [2009] NSWCA 280 at [80]. An allowance can be made on a buffer basis where the impact of an injury caused by negligence upon the plaintiff’s loss of earning capacity…
Mason v Demasi [2009] NSWCA 227
Citation 15 (Para 8)

…that some caution must be exercised by a trial judge in relying on what appears in medical notes for the reason given by Basten JA in Mason v Demasi [2009] NSWCA 227 at [2] which has been followed in numerous later authorities. However, the plaintiff struck me as having very good English, being careful in her answ…
Turkmani v Visvalingam [2009] NSWCA 211
Citation 16 (Para 28)

…ise quite a high degree of vigilance, especially in the presence of other traffic and in the vicinity of intersections": Turkmani v Visvalingam [2009] NSWCA 211; 53 MVR 176 at [28] (Hodgson JA, Beazley and McColl JJA agreeing).”…
Manley v Alexander [2005] HCA 79
Citation 17

…NSWCA 72 Johnston v Stock [2014] NSWCA 147 Logar v Ambulance Service of New South Wales Sydney Region [2017] NSWCA 274 Manley v Alexander [2005] HCA 79; (2005) ALJR 413 Marien v Gardiner [2013] NSWCA 396 Mason v Demasi [2009] NSWCA 227 Penrith City Council v Parkes [2004] NSWCA 201 Podrebersek v Australian Iron…
Mackenzie v The Nominal Defendant [2005] NSWCA 180
Citation 18 (Para 54)

…process, a comparison of the kind described in Podrebersek . See the discussion per Giles JA in Mackenzie v The Nominal Defendant [2005] NSWCA 180 ; 43 MVR 315 at [54]–[63]. In Joslyn v Berryman [2003] HCA 34 ; 214 CLR 552 at [157] Hayne J considered s 74(3) to require the undertaking of such a comparison: cf Kirby…
Penrith City Council v Parks [2004] NSWCA 201
Citation 19 (Para 192)

…used by negligence upon the plaintiff’s loss of earning capacity is difficult to determine or involves uncertainties: Penrith City Council v Parkes [2004] NSWCA 201; Sretenovic v Reed , above at [79]-[81].…
Joslyn v Berryman [2003] HCA 34
Citation 20 (Para 54)

…e discussion per Giles JA in Mackenzie v The Nominal Defendant [2005] NSWCA 180 ; 43 MVR 315 at [54]–[63]. In Joslyn v Berryman [2003] HCA 34 ; 214 CLR 552 at [157] Hayne J considered s 74(3) to require the undertaking of such a comparison: cf Kirby J at [133]. [29] Section 5R of the CL Act, which by s 3B(2)(a)…
Derrick v Cheung [2001] HCA 48
Citation 21

…tances: Civil Liability Act s 5B(1). … 77. In Warth v Lafsky at [56] McColl JA observed that notwithstanding the conclusion in Derrick v Cheung [2001] HCA 48; 181 ALR 301, it is accepted that drivers must take into account the possibility of careless behaviour by pedestrians and the fact that they are in charge…
Astley v AusTrust Ltd [1999] HCA 6
Citation 22 (Para 21)

…h Columbia Electric Railway Co Ltd [1951] AC 601 at 611 in a passage cited with approval by the majority in Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1 at [21]. [25] The approach to the reduction of damages in accordance with the language of s 9(1) was described in Podrebersek v Australian Iron & Steel Pty Lt…
Nicholson v Nicholson [1995] HCATrans 299
Citation 23

…[27] Section 74(3) of the Motor Accidents Act 1988 (NSW) is in the same terms. In Nicholson v Nicholson (1994) 35 NSWLR 308 at 333–334, Mahoney JA suggested a reason for the use of the broader language. The concept of contributory negligence involves the plaintiff’s lack of care contributing to the damage. However, th…
Podbrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34
Citation 24

…damages in accordance with the language of s 9(1) was described in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 ; 59 ALJR 492 at 494 as follows: The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a compa…
Graham v Baker [1961] HCA 48
Citation 25 (Para 192)

…earning capacity which is or may be productive of financial loss. The plaintiff must prove the loss for which compensation is sought: Graham v Baker (1961) 106 CLR 340 at 347, Sretenovic v Reed [2009] NSWCA 280 at [80]. An allowance can be made on a buffer basis where the impact of an injury caused by negligence upo…
[1951] AC 601 [1951] AC 601
Citation 26

…e must contribute to the occurrence of the injury or the nature or extent of it: Nance v British Columbia Electric Railway Co Ltd [1951] AC 601 at 611 in a passage cited with approval by the majority in Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1 at [21]. [25] The approach to the reduction of damages in accord…
[1980] 1 WLR 1175 [1980] 1 WLR 1175
Citation 27

…NSWCA 287 Sretenovic v Reed [2009] NSWCA 280 Strong v Woolworths Ltd (2012) 246 CLR 182 Wallace v Kam (2013) 250 CLR 375 Worsfold v Howe [1980] 1 WLR 1175 Category: Principal judgment Parties: Amrin Shaikh (Plaintiff) Elias Risk (Defendant) Representation: Counsel: J Trainor (Plaintiff) A J Renshaw (Defendant) Soli…

Legislation Cited

Civil Liability Act 2002 (TAS) 5R, 5S
3 mentions
Federal Commissioner of Taxation v Westraders Pty Ltd
1 mention
Law Reform (Contributory Negligence) Act 1945 c.28
1 mention
Law Reform (Miscellaneous Provisions) Act 1965 (ACT) 9
1 mention
Motor Accidents Act 1988 (NSW)
1 mention
Motor Accidents Compensation Act 1999 (NSW)
1 mention (from Para 1)
Road Rules 2014 (NSW)
1 mention (from Para 8)

Medium Neutral Citation:	Shaikh v Risk [2019] NSWDC 557
Hearing dates:	27-29 August 2019; 20 September 2019
Date of orders:	03 October 2019
Decision date:	03 October 2019
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the plaintiff in the sum of $31,312.64. (2) The defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed. (3) Liberty to the parties to apply to vary order (2) within 14 days. (4) Liberty to the parties to approach the court within 7 days to correct any mathematical errors in the damages awarded.
Catchwords:	Torts – negligence – motor vehicle accident – whether breach of duty of care by defendant – whether contributory negligence by plaintiff – causation - significance of prior medical conditions - extent of plaintiff's injuries arising from the accident – extent of damages
Legislation Cited:	Civil Liability Act 2002 (NSW) Road Rules 2014 (NSW)
Cases Cited:	Argo Managing Agency Ltd v Kammessy [2018] NSWCA 176 Boateng v Dharamdas [2016] NSWCA 183 Davis v Swift [2014] NSWCA 458 El-Mohamad v Celenk [2017] NSWCA 242 Graham v Baker (1961) 106 CLR 340 Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 Johnston v Stock [2014] NSWCA 147 Logar v Ambulance Service of New South Wales Sydney Region [2017] NSWCA 274 Manley v Alexander [2005] HCA 79; (2005) ALJR 413 Marien v Gardiner [2013] NSWCA 396 Mason v Demasi [2009] NSWCA 227 Penrith City Council v Parkes [2004] NSWCA 201 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 Smith v Alone [2017] NSWCA 287 Sretenovic v Reed [2009] NSWCA 280 Strong v Woolworths Ltd (2012) 246 CLR 182 Wallace v Kam (2013) 250 CLR 375 Worsfold v Howe [1980] 1 WLR 1175
Category:	Principal judgment
Parties:	Amrin Shaikh (Plaintiff) Elias Risk (Defendant)
Representation:	Counsel: J Trainor (Plaintiff) A J Renshaw (Defendant) Solicitors: Gajic Lawyers (Plaintiff) Holman Webb (Defendant)
File Number(s):	2018/00358121