Shaikh v Risk [2019] NSWDC 557

Shaikh v Risk [2019] NSWDC 557

The defendant breached his duty of care because, in the circumstances of a school drop-off area, drizzling weather, stationary traffic, restricted visibility and an obligation to give way, a reasonable driver would not have exited the driveway and turned right in one continuous accelerating movement but would have stopped or slowed in the centre and proceeded very cautiously. That breach caused the collision because, had the defendant stopped or slowed and inched forward, it was more likely than not the plaintiff would have seen the vehicle and stopped. The plaintiff was also contributorily negligent by overtaking stationary traffic near a school in those conditions at an excessive speed...

Jurisdiction
Australia
Judgment Date
03 October 2019
Procedural Posture
Civil Personal Injury Damages Claim Under the Motor Accidents Compensation Act 1999 (nsw) Arising From a Motor Vehicle Accident / Principal Judgment After Hearing
Outcome
Judgment for the plaintiff in the sum of $31,312.64, after a 60% reduction for contributory negligence.
Legal Topics
['motor Vehicle Accident' 'breach of Duty of Care' 'contributory Negligence' 'causation' 'prior Medical Conditions' 'soft Tissue Injuries' 'loss of Earning Capacity' 'commercial Domestic Assistance']
['torts' 'negligence' 'motor Accidents' 'personal Injury' 'damages'] ['motor Vehicle Accident' 'breach of Duty of Care' 'contributory Negligence' 'causation' 'prior Medical Conditions' 'soft Tissue Injuries' 'loss of Earning Capacity' 'commercial Domestic Assistance']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Civil Personal Injury Damages Claim Under the Motor Accidents Compensation Act 1999 (nsw) Arising From a Motor Vehicle Accident / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the defendant breached his duty of care in exiting a school entrance driveway and turning right onto Highclere Avenue.' "Whether any breach by the defendant caused the plaintiff's injuries and loss." 'Whether the plaintiff was contributorily negligent by overtaking stationary traffic near a school in drizzling weather and, if so, the percentage reduction.' "Which of the plaintiff's alleged injuries and disabilities were caused by the accident having regard to her prior medical history." 'What damages were recoverable for out-of-pocket expenses, commercial assistance, and loss of earning capacity.']

Ratio Decidendi

The defendant breached his duty of care because, in the circumstances of a school drop-off area, drizzling weather, stationary traffic, restricted visibility and an obligation to give way, a reasonable driver would not have exited the driveway and turned right in one continuous accelerating movement but would have stopped or slowed in the centre and proceeded very cautiously. That breach caused the collision because, had the defendant stopped or slowed and inched forward, it was more likely than not the plaintiff would have seen the vehicle and stopped. The plaintiff was also contributorily negligent by overtaking stationary traffic near a school in those conditions at an excessive speed...

Court Disposition

Judgment for the plaintiff in the sum of $31,312.64, after a 60% reduction for contributory negligence.

Orders

  • ['Judgment for the plaintiff in the sum of $31,312.64.' "The defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed." 'Liberty to the parties to apply to vary order (2) within 14 days.' 'Liberty to the parties to approach the court within 7 days to correct any mathematical errors in the...