Colak v Ghalloub [2017] NSWDC 128

Procedural Posture

Civil Personal Injury Claim for Damages Arising From a Motor Vehicle Accident / Principal Judgment After Hearing

Legal Issues

1. 1 ["Whether the plaintiff observed the defendant's vehicle reversing from the driveway upon turning on to Montrose Avenue prior to the collision." "Whether the plaintiff attempted to drive around or past the defendant's vehicle despite observing it to be in the process of reversing." 'Whether the defendant was reversing at an excessive speed in the circumstances.' "Whether the collision was caused by the plaintiff's failure to give way to the defendant, slow or stop upon observing that the defendant was in the process of reversing." 'Whether the plaintiff suffered any injury as a consequence of the collision.' 'Whether the medical evidence showed any aggravation of pre-existing injuries and medical conditions as a direct consequence of the accident.' "Whether the plaintiff's current medical symptoms and complaints were simply a continuation of pre-existing medical conditions." 'Whether the plaintiff suffered any quantifiable loss as a direct consequence of the accident.']

Ratio Decidendi

The plaintiff failed to prove negligence by the defendant. The Court found the plaintiff to be an unreliable historian who had given materially inconsistent accounts of the accident, rejected Mr Biber's evidence as unreliable, and was satisfied that the plaintiff saw the defendant's vehicle after it had backed out and stopped ready to move forward but attempted to go around it and misjudged the distance. The defendant was not in breach of his duty when reversing and it was not reasonably foreseeable that the plaintiff would continue to overtake a stopped vehicle in the middle of the road where he had sufficient time and visibility to stop.

Court Disposition

Judgment for the defendant; costs reserved.

Orders

• ['Judgment for the defendant.' 'Costs reserved.' 'Liberty to apply in relation to costs.' 'Exhibits retained for 28 days.']