Shayne Henderson v Darren McLean (Taree) - [2007] NSWDC 199

CITATION: Shayne Henderson v Darren McLean (Taree) [2007] NSWDC 199

HEARING DATE(S): 1/8/07-2/8/07, 4/9/07

JUDGMENT DATE:
5 October 2007

JURISDICTION: Civil

JUDGMENT OF: Rolfe DCJ

DECISION: 1. Verdict and Judgment for the plaintiff against the Defendant in the amount of $148,825; 2. Order the 1st Defendant to pay the Plaintiff’s costs of the proceedings against 1st Defendant, such costs to be agreed or assessed on the ordinary basis; 3. I direct that the exhibits be retained in the registry for six weeks; 4. I publish my reasons; 5. I grant a stay of enforcement of the Judgment up to and including 8/11/07.

CATCHWORDS: Motor Vehicle Accident - Pedestrian Injured in early hours of the morning crossing Pacific Highway - Breach of Duty Considered - Contributory Negligence - Various aspects of damages considered

LEGISLATION CITED: Civil Liability Act 2002
Motor Accidents Compensation Act 1999

PARTIES: Shayne Henderson (Plaintiff)
Darren McLean (1st Defendant)

FILE NUMBER(S): 61/2005

COUNSEL: R Letherbarrow SC with D M Wilson (Plaintiff)
D Russell SC (1st Defendant)

JUDGMENT

1 The plaintiff in these proceedings, Shayne Henderson, was injured in a motor vehicle accident on 16 August 2002 and brings this claim for damages in negligence against the 1st defendant, Darren McLean. As the proceedings between the plaintiff and the 2nd Defendant, Daryl John Potts, were settled prior to commencement of the hearing, for convenience, I will refer in this judgment to Mr McLean as “the defendant”.

2 The plaintiff was born on 18 February 1965 in Sydney and so he will shortly be 43 years of age. He lives in a rented property in Taree West with Sharon Taylor, the mother of his two sons who are aged 12 and 4 years respectively. The plaintiff and Ms Taylor both said that they had known each other for 20 years and had lived as man and wife on and off during that period. At the time the case was heard in Taree District Court in July 2007, they were not living as man and wife and the plaintiff was sleeping in a separate room.

3 The plaintiff was the ninth child of ten children. Unfortunately, the plaintiff got into trouble with the law at an early age. He was convicted of stealing when he was aged ten and was released on probation for 12 months. In 1977 the plaintiff was convicted of stealing again and committed to an institution. The following year, 1978, the plaintiff was convicted of a number of driving offences and given a two year good behaviour bond.

4 The plaintiff left school in 1980 aged 15 years. He obtained the School Certificate.

5 Over the next 20 years the plaintiff spent 8 years in prison. The most serious offence he committed was in 1987 when he was convicted of robbery. He served 4 years in gaol for this offence. Other offences that were committed included convictions for stealing, breaking and entering, mid-range PCA and other driving offences, indecent assault, escaping lawful custody, assault and behaving in…

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.

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Details

Case: [2007] NSWDC 199
Decision Date: 5 October 2007

CaseChat Overview and Summary

The plaintiff, Shayne Henderson, sought compensation from the defendant, Darren McLean, for injuries sustained when he was struck by a vehicle driven by McLean while crossing the Pacific Highway in the early hours of the morning. The matter was heard in the District Court of New South Wales. The plaintiff claimed that McLean was negligent in failing to reduce his speed and in failing to keep a proper lookout for pedestrians, resulting in the collision.

The legal issues before the court were whether McLean breached his duty of care to the plaintiff and, if so, what the extent of that breach was. Additionally, the court had to consider whether the plaintiff's contributory negligence, given the time of day and his decision to cross the highway, should reduce the damages awarded. The court also needed to determine the appropriate amount of damages to be awarded to the plaintiff, considering both economic and non-economic losses.

The court found that McLean was indeed negligent in his driving, as he failed to keep a proper lookout and did not reduce his speed adequately for the conditions. The plaintiff's decision to cross the highway in the early morning hours did contribute to the risk of the accident, but this did not absolve McLean of his primary responsibility. The court considered various aspects of damages, including medical expenses, loss of income, and pain and suffering. After weighing these factors, the court awarded the plaintiff a total of $148,825 in damages. The court also ordered McLean to pay the plaintiff's costs of the proceedings, to be agreed upon or assessed on the ordinary basis. Furthermore, the exhibits were to be retained in the registry for six weeks, and a stay of enforcement of the judgment was granted until 8 November 2007.

Orders

Orders of the court

1. Verdict and Judgment for the plaintiff against the Defendant in the amount of $148,825; 2. Order the 1st Defendant to pay the Plaintiff's costs of the proceedings against 1st Defendant, such costs to be agreed or assessed on the ordinary basis; 3. I direct that the exhibits be retained in the registry for six weeks; 4. I publish my reasons; 5. I grant a stay of enforcement of the Judgment up to and including 8/11/07.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Shayne Henderson v Darren McLean (Taree) [2007] NSWDC 199
HEARING DATE(S):	1/8/07-2/8/07, 4/9/07
JUDGMENT DATE:	5 October 2007
JURISDICTION:	Civil
JUDGMENT OF:	Rolfe DCJ
DECISION:	1. Verdict and Judgment for the plaintiff against the Defendant in the amount of $148,825; 2. Order the 1st Defendant to pay the Plaintiff’s costs of the proceedings against 1st Defendant, such costs to be agreed or assessed on the ordinary basis; 3. I direct that the exhibits be retained in the registry for six weeks; 4. I publish my reasons; 5. I grant a stay of enforcement of the Judgment up to and including 8/11/07.
CATCHWORDS:	Motor Vehicle Accident - Pedestrian Injured in early hours of the morning crossing Pacific Highway - Breach of Duty Considered - Contributory Negligence - Various aspects of damages considered
LEGISLATION CITED:	Civil Liability Act 2002 Motor Accidents Compensation Act 1999
PARTIES:	Shayne Henderson (Plaintiff) Darren McLean (1st Defendant)
FILE NUMBER(S):	61/2005
COUNSEL:	R Letherbarrow SC with D M Wilson (Plaintiff) D Russell SC (1st Defendant)