CITATION: Zilio v Lane [2009] NSWDC 226 HEARING DATE(S): 18-22 and 25 February 2008; 28 March 2008; 20 June 2008; 2-6 February 2009; 17 April 2009; 1 and 22 May 2009, 23 July 2009
JUDGMENT DATE:
28 July 2009JURISDICTION: Civil JUDGMENT OF: Gibson DCJ DECISION: (1) Judgment for the defendant.
(2) Plaintiff pay defendant’s costs.
(3) Liberty to restore.
(4) Exhibits retained for 28 days.CATCHWORDS: TORT - motor vehicle accident - personal injury - liability - contributory negligence - judgment for defendant - alternative finding of 100% contributory negligence LEGISLATION CITED: Civil Liability Act 2002 (NSW), ss 5S and 5R
Civil Procedure Act 2005 (NSW), s 56
Evidence Act 1995 (NSW), ss 38 and 135
Motor Accidents Compensation Act 1999 (NSW), s 138CASES CITED: Angel v Hawkesbury City Council [2008] NSWCA 130
Chamberlain v Ormsby t/as Ormsby Flower [2005] NSWCA 454
Goodsell v Murphy [2002] NSWCA 216
Harrison v Melhem & Anor (No 1) [2006] NSWSC 1258
Harrison v Melhem & Anor (No 2) [2006] NSWSC 1293
Harrison v Melhem [2008] NSWCA 67
Jones v Bradley [2003] NSWCA 81
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Knight v GIO (NSW) (New South Wales Court of Appeal, Kirby P, Priestley and Cole JJA, 13 April 1995, unreported)
MacKenzie v Nominal Defendant (2005) 43 MVR 315
Nominal Defendant v Lane [2004] NSWCA 405
Ragen v The Nominal Defendant (No 3) [2007] NSWDC 86
Shayne Henderson v Darren McLean (Taree) [2007] NSWDC 199
Vale v Eggins [2006] NSWCA 348
Wynbergen v Hoyts Corp Pty Ltd (1997) 149 ALR 25
Yates v Jones (New South Wales Court of Appeal, 7 December 1989, unreported)
Yip v Zreika [2001] NSWCA 446PARTIES: Plaintiff: Ricky Zilio
Defendant: Heather LaneFILE NUMBER(S): 1220 of 2005 COUNSEL: Plaintiff: Mr D Campbell SC / Mr T Meakes
Defendant: Mr D WilsonSOLICITORS: Plaintiff: Beston Macken McManis
Defendant: Sparke Helmore Lawyers
Judgment
The plaintiff’s claim for damages
[1] The plaintiff by way of Statement of Claim filed on 7 April 2005 brings proceedings for damages arising out of circumstances in which the plaintiff suffered very serious injuries on 19 July 2003 while riding his motorcycle along X Street, Blacktown, and collided with a nearby parked vehicle. [The name of this street and certain other personal details have been anonymised for privacy reasons.] The defendant, according to the Statement of Claim, “reversed her vehicle into the path of the plaintiff’s motorcycle, as a result of which the plaintiff swerved to avoid the 4 wheel drive vehicle and collided with a nearby parked vehicle” (paragraph 2 Statement of Claim).
[2] The plaintiff suffered the following serious injuries:
- (a) L1 burst fracture;
(b) Fracture T9 – L1 transverse processes;
(c) Left fractured ribs (8-12);
(d) Small bilateral pneumothoraces;
(e) Paraplegia;
(f) Paralysed from the waist down;
(g) Multiple bruising.
[3] The plaintiff suffered the following extensive disabilities:
(a) Paraplegia below the waist;
(b) Profound paralysis of both lower limbs;
(c) Urinary incontinence;
(d) Incontinence of faeces;
(e)…
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- AGLC
- Zilio v Lane [2009] NSWDC 226
- Case
- [2009] NSWDC 226
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether Ms Lane breached her duty of care, causing the accident, and whether Mr Zilio's actions contributed to the accident. The court had to examine the evidence presented to ascertain the facts surrounding the incident and determine the degree of fault attributable to each party. A significant point of contention was the extent to which Mr Zilio's actions, if any, contributed to the accident, and how this might impact the apportionment of liability.
The court found that Ms Lane was not liable for the accident, as the evidence did not support a breach of duty on her part. However, the court determined that Mr Zilio was 100% contributory negligent in the circumstances leading to the accident. Given this finding, the court ruled in favour of Ms Lane, holding her not liable for the accident. The court further ordered that Mr Zilio pay Ms Lane's costs and that the exhibits be retained for 28 days. The court granted liberty to restore, allowing for potential future claims if new evidence emerged.
Orders
Orders of the court
(1) Judgment for the defendant. (2) Plaintiff pay defendant's costs. (3) Liberty to restore. (4) Exhibits retained for 28 days.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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