Tu Tran v Dos Santos - [2008] NSWSC 1216

CITATION: Tu Tran v Dos Santos [2008] NSWSC 1216

HEARING DATE(S): 14-18, 21-24, 28-30 April,1-2 May 2008

JUDGMENT DATE :
20 November 2008

JUDGMENT OF: Smart AJ at 1

DECISION: Defendant held negligent. Plaintiff held contributorily negligent. Stood over for further evidence on limited damages aspects.

CATCHWORDS: Motor vehicle accident - plaintiff very severely brain damaged - isues of negligence and contributory negligence - application of agony of moment/emergency principles to both parties - Assessment of Damages in view of plaintiff's condition - non provision of purpose built house - plaintiff unaware of his surroundings or his condition - rehabilitation improbable - limited physiotherapy - future medical care and treatment - limited life expectancy

LEGISLATION CITED: Motor Accidents Compensation Act (1999) (NSW)
Superannuation Guarantee (Administration) Act (1992) (Cth)

CATEGORY: Principal judgment

CASES CITED: Cortis v Baker [1968] SASR 367
Leishman v Thomas; Hobbs (3rd Party) (1957) 75 WN (NSW) 173
Medida Pty Ltd v Tobin (NSWCA, 20 December 1995-BC9501776)
Nominal Defendant v Rowland-Smith [2003] NSWCA 65
Norris v Blake (No.2) (1997) 41 NSWLR 49
Shelley v Szelley [1971] SASR 430

PARTIES: Tu Tran
Maria Dos Santos

FILE NUMBER(S): SC 20210/06

COUNSEL: H.J. Marshall SC and Mr Taylor (P)
R.Stitt QC and H.M. Stitt (D)

SOLICITORS: Keddies Lawyers (P)
Sparke Helmore (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SMART AJ

Thursday 20 November 2008

TU TRAN V MARIA DOS SANTOS

JUDGMENT

Introduction

1 Tu Tran by his tutor Tam Thanh Tran, the plaintiff's brother, sues Mrs Maria Dos Santos for damages for negligence when on 14 November 2003 a car she was driving on Henry Lawson Drive, Georges Hall, collided with Tu Tran who sustained grievous injuries as a result, including extensive brain damage. It is feared that he will spend the remainder of his life in a bed or a special chair which has many of the characteristics of a bed. He cannot speak nor is there any reasonable prospect that he will be able to do so in the future. He was born on I May 1970.

2 There are substantial issues whether the plaintiff has proved that the defendant was negligent and whether he was guilty of contributory negligence. There are major issues as to whether the plaintiff can be rehabilitated or further rehabilitated, as to the provision that should be made and care provided for him and as to his future life expectancy.

3 The second amended statement of claim (2ASC) contains the following particulars of negligence, amongst others:

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: [2008] NSWSC 1216
Decision Date: 20 November 2008

CaseChat Overview and Summary

In the case of Tu Tran v Dos Santos, the plaintiff, Tu Tran, was severely brain damaged as a result of a motor vehicle accident. Tu Tran sought compensation from the defendant, Dos Santos, for damages arising from the accident. The case was heard in the Supreme Court of Victoria. The dispute centred on issues of negligence, contributory negligence, and the assessment of damages, particularly in light of Tu Tran's severe cognitive impairment and limited life expectancy.

The court was required to determine whether Dos Santos was negligent in causing the accident and whether Tu Tran's contributory negligence should be considered in assessing damages. Additionally, the court had to assess the extent of damages, including future medical care, treatment, and rehabilitation, given Tu Tran's severe brain injury and the improbability of significant recovery. The application of the agony of the moment/emergency principles to both parties was also a critical issue.

The court found Dos Santos negligent in causing the accident and rejected the defendant's claim of contributory negligence on the part of Tu Tran. The court assessed the damages, taking into account Tu Tran's severe cognitive impairment, limited life expectancy, and the unlikelihood of significant rehabilitation. The court ordered Dos Santos to pay damages for future medical care and treatment, but did not order the provision of a purpose-built house for Tu Tran, given his unawareness of his surroundings and condition. The court's decision balanced the principles of negligence and contributory negligence with the practical realities of Tu Tran's condition.

Orders