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Tonks v Tonks

Tonks v Tonks

Case [2003] VSCA 195 10 December 2003

Negligence

Contributory Negligence

Compensatory Damages

Tort Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3774 of 2002

TO HA LU
	Appellant
v.
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGES:	PHILLIPS, CALLAWAY and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 November 2003
DATE OF JUDGMENT:	10 December 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 195

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Negligence – Personal injuries – Transport accident – Unidentified vehicle “cutting in” – Plaintiff turning off road to avoid collision and crashing into tree – Whether open to jury to find contributory negligence – Whether reduction of damages by 75 per cent within range – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr H.W. Fox, Q.C. with Mr J.P. Brett	Arnold Thomas & Becker
For the Respondent	Mr J. Ruskin, Q.C. with Mr D.R. Myers	TAC Law Pty. Ltd.

PHILLIPS, J.A.:

I agree with Callaway, J.A.

CALLAWAY, J.A.:

On 6^th August 2001 the appellant filed a writ in the County Court claiming damages for personal injuries sustained by him in a transport accident on 16^th January 1998 when the car he was driving crashed into a tree at the side of the road. The proceeding came on for trial on 7^th November 2002 before Judge Stott and a jury of six. Quantum was agreed between the parties and the trial lasted only one day. It resulted in judgment being entered for the appellant in the sum of $22,310, together with costs to be taxed on scale “C” and a certificate for two counsel at fixed fees.

The sole evidence in the case was that of the appellant, whose evidence was given through a Chinese interpreter. He said that on 16^th January 1998 he intended to see a surgeon in relation to injuries to his right arm sustained in 1996. The surgeon had rooms near the St Albans Shopping Centre. Shortly before 4 p.m. the appellant was driving north in St Albans Road. The weather was very good and he was alone in his vehicle. He said that there were two lanes available for traffic going north and that he was driving in the left lane. He noticed a truck in the right lane, which came alongside and then began to turn in front of him. It was a medium sized, silver/white truck with an enclosed back. It cut into the left lane close to the appellant’s vehicle. The plaintiff turned his wheel to the left and then heard a big bang. His next recollection was at the hospital.

In cross-examination it was put to the appellant that there were not in fact two northbound lanes. He maintained his position but was unclear whether the two lanes were divided by a line and, if so, whether that line was broken. He said that he did not brake when the truck came in front of him because he was frightened and tried to avoid it. I shall refer to this evidence again later. He was cross-examined as to credit and in particular as to an ambulance report…

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

AGLC: Tonks v Tonks [2003] VSCA 195
Case: [2003] VSCA 195
Decision Date: 10 December 2003

CaseChat Overview and Summary

The appeal was brought by the plaintiff, Tonks, against the defendant, also Tonks, in relation to a transport accident where the plaintiff alleged that the defendant was negligent in causing a collision that resulted in the plaintiff’s injuries. The matter was heard in the Supreme Court of South Australia. The central issue before the court was whether the jury was open to finding that the plaintiff was contributorily negligent by a significant degree and if the reduction of damages by 75 per cent was within the range of reasonable outcomes. The court was also required to consider whether the trial judge erred in his instructions to the jury regarding contributory negligence.

The court examined the evidence presented and the jury’s verdict in detail. It found that there was ample evidence to support the jury's conclusion that the plaintiff was 75 per cent contributorily negligent. The court held that the trial judge's instructions to the jury did not misdirect them, as they correctly outlined the principles of contributory negligence and allowed the jury to make a finding within the range of reasonable outcomes. The court emphasised that the jury was properly directed to consider all the evidence and determine the degree of contributory negligence, which in this case was found to be 75 per cent.

Given the thorough review of the evidence and the court's conclusion that the jury’s finding of contributory negligence was supported by the evidence, the appeal was dismissed. The court found no error in the trial judge's instructions and upheld the jury's verdict regarding the degree of contributory negligence. Consequently, the damages awarded to the plaintiff were reduced by 75 per cent, which the court deemed to be within the range of reasonable outcomes.

Orders