Foreshew v Imsies & Anor [2011] NSWDC 198

Foreshew v Imsies & Anor [2011] NSWDC 198

The plaintiff was contributorily negligent because he rode over the crest of a hill at about 60kph in a 50kph zone, thereby reducing his opportunity to react to danger. However, the defendants failed to prove that this negligence was a relevant cause of the accident or injuries, given the lack of evidence about the defendants' vehicle speed, acceleration, distance travelled, turning trajectory and timing, and the plaintiff's accepted evidence that he could not have avoided the collision even at 50kph. Damages were therefore assessed without any contributory negligence discount at $1,210,042.

Jurisdiction
Australia
Judgment Date
16 December 2011
Procedural Posture
Civil Claim for Damages for Injuries From a Motor Vehicle Accident Governed by the Motor Accidents Compensation Act 1999 / Principal Judgment After Hearing on Liability for Alleged Contributory Negligence and Assessment of Damages
Outcome
Verdict and judgment for the plaintiff in the assessed sum of $1,210,042 without any discount for alleged contributory negligence.
Legal Topics
['contributory Negligence' 'causation' 'assessment of Damages' 'non Economic Loss' 'past and Future Economic Loss' 'superannuation Loss' 'gratuitous Care and Domestic Assistance' 'future Medical Expenses' 'expert Evidence and Case Management']
['torts' 'motor Vehicle Accidents' 'damages' 'civil Procedure' 'evidence'] ['contributory Negligence' 'causation' 'assessment of Damages' 'non Economic Loss' 'past and Future Economic Loss' 'superannuation Loss' 'gratuitous Care and Domestic Assistance' 'future Medical Expenses' 'expert Evidence and Case Management']

Case Brief

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Procedural Posture

Civil Claim for Damages for Injuries From a Motor Vehicle Accident Governed by the Motor Accidents Compensation Act 1999 / Principal Judgment After Hearing on Liability for Alleged Contributory Negligence and Assessment of Damages

Legal Issues

  1. 1 ['Whether the plaintiff was contributorily negligent by riding his motorcycle at an excessive speed, failing to maintain a safe distance, or failing to stop, reduce speed, manoeuvre or control his motorcycle to avoid the collision.' 'Whether any contributory negligence by the plaintiff was a relevant cause of the collision or of his injuries.' 'What damages should be assessed under the claimed heads of damage.' 'Whether the defendants should be permitted to tender the accident reconstruction expert report of Mr Grant Johnstone.']

Ratio Decidendi

The plaintiff was contributorily negligent because he rode over the crest of a hill at about 60kph in a 50kph zone, thereby reducing his opportunity to react to danger. However, the defendants failed to prove that this negligence was a relevant cause of the accident or injuries, given the lack of evidence about the defendants' vehicle speed, acceleration, distance travelled, turning trajectory and timing, and the plaintiff's accepted evidence that he could not have avoided the collision even at 50kph. Damages were therefore assessed without any contributory negligence discount at $1,210,042.

Court Disposition

Verdict and judgment for the plaintiff in the assessed sum of $1,210,042 without any discount for alleged contributory negligence.

Orders

  • ['Verdict and judgment for the plaintiff in the assessed sum of $ 1,210,042 without any discount for alleged contributory negligence ;' "The defendants are to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;" 'The exhibits may be returned;' 'Liberty to apply on 7 days notice if further...