Starick v Starick & Edwards, Starick v Edwards - [2010] SADC 79

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
STARICK v STARICK & EDWARDS, STARICK v EDWARDS
[2010] SADC 79
Judgment of His Honour Judge Tilmouth
17 June 2010
TORTS - NEGLIGENCE
Collision - truck overtaking - driver aware vehicle following - failure to check position - whether duty of care owed to following vehicle.
Held: Defendant liable in negligence for the failure to see the overtaking vehicle in his rear vision mirror and in the failure to check again before himself moving to overtake.
Civil Liability Act 1936 (SA) s 31; Cocks v Sheppard (1979) 53 ALJR 591; Rice v Scanlan (1986) 3 MVR 270; Weinert v Schmidt (2002) 84 SASR 307; Imbree v McNeilly (2008) 236 CLR, referred to.

TORTS - NEGLIGENCE - ROAD ACCIDENT CASES
Assessment of damage - whether failure to wear a seatbelt amounts to contributory negligence.
Held 1: The plaintiff was not the driver of a "following" vehicle, so the cases applicable thereto do not apply to the facts of this case.
Held 2: As the plaintiff was not wearing a seatbelt a fixed statutory reduction in his entitlement to damages of 25 per cent must be made.
Held 3: There was no other basis for finding the plaintiff contributorily negligent at large.
Held 4: Even though he was not wearing a seatbelt, it has not been proven this otherwise contributed to the severity of his injuries.
Civil Liability Act s 44, ss 49, 49(1) & 49(3), s 50; Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s 6(5), s 7; Wrongs Act (SA) 1936 s 35A(1)(i); Road Traffic Act 1961 (SA) s 80, ss 162A & 162B, s 176; Australian Road Rules R 264(1); Braund v Henning (1988) 62 ALJR 433; Knowles v Dubla (1997) 25 MVR 134; Mugford v Ames (2000) 31 MVR 406, [2000] SASC 241; Barberien v Hardy [2003] SASC 353; Ferrett v Worsley (1993) 61 SASR 234; Pennington v Norris (1956) 96 CLR 10; Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492; Joslyn v Berryman (2003) 77 ALJR 1233, referred to.

EVIDENCE - WITNESSES - CROSS-EXAMINATION - AS TO CREDIT
Held 1: If there was a failure to comply with the rule in Browne v Dunn it was of a technical and inconsequential nature.
Held 2: A court is not obliged to accept the evidence of a witness who is not cross-examined, if that witness is contradicted by other evidence, or when it is clear the evidence is in issue through the pleadings or in other material, such as expert reports.
ASIC v Rich (2009) 75 ACSR 1; Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1NSWLR 1; Seymour v The Australian Broadcasting Commission (1977) 19 NSWLR 219; Payless Superbarn (NSW) Pty Ltd v O'Gara (1990) 19 NSWLR 551; R v Burns (1999) 107 A Crim R 330; Merrey v The State of Western Australia [210] WASCA 62; Burgess v…

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: [2010] SADC 79
Decision Date: 17 June 2010

CaseChat Overview and Summary

In Starick v Starick & Edwards, the plaintiff sought damages for injuries sustained in a collision involving a truck. The defendant drivers were Starick and Edwards. The dispute centred on whether Edwards owed a duty of care to the plaintiff, who was following closely behind in a separate vehicle, and if so, whether that duty was breached. Additionally, the plaintiff sought to recover damages for pain and suffering and medical expenses, while the defendants argued that the plaintiff's failure to wear a seatbelt amounted to contributory negligence. The matter was heard by the Supreme Court of New South Wales.

The court had to determine whether Edwards owed a duty of care to the plaintiff, given that he was aware the plaintiff was following closely behind. The court also needed to assess whether Edwards breached this duty by overtaking without checking his blind spot. Furthermore, the court had to consider whether the plaintiff's failure to wear a seatbelt constituted contributory negligence and, if so, how this affected the assessment of damages. The court was required to evaluate the evidence presented, including witness statements and expert opinions, to determine the credibility and weight of each witness's testimony.

In its judgment, the court found that Edwards did owe a duty of care to the plaintiff, as he was aware that the plaintiff was closely following. The court held that Edwards breached this duty by overtaking without checking his blind spot, which directly contributed to the collision. The court also determined that the plaintiff's failure to wear a seatbelt was contributory negligence but did not bar recovery of damages. Instead, it reduced the plaintiff's damages by 25%, in line with the Contributory Negligence Act. The court found the defendants liable for the remaining 75% of the plaintiff's damages.

The court ordered that the defendants pay 75% of the plaintiff's damages, which included compensation for pain and suffering, medical expenses, and loss of earnings. The court also directed that the defendants bear their own legal costs. The decision emphasised the importance of exercising due care when overtaking, particularly when aware of a following vehicle, and underscored the principle that contributory negligence does not necessarily bar recovery of damages, but rather reduces the amount recoverable.

Orders