Tonks v Tonks

Case [2003] VSCA 195


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.:

  1. I agree with Callaway, J.A.

CALLAWAY, J.A.:

  1. On 6th August 2001 the appellant filed a writ in the County Court claiming damages for personal injuries sustained by him in a transport accident on 16th 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 7th 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.

  1. The sole evidence in the case was that of the appellant, whose evidence was given through a Chinese interpreter.  He said that on 16th 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. 

  1. 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…

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Tonks v Tonks [2003] VSCA 195
Case
[2003] VSCA 195
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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