Dregorius v Tisma [2020] NSWDC 489

Dregorius v Tisma [2020] NSWDC 489

The defendant was in charge of the car as a driver and also its owner when he initiated and participated in the plan to remove the brick chocks and roll the car down the sloping driveway. The operative cause of the plaintiff's injury was the removal of the chocks and the rolling of the car without anyone in the driver's seat to brake or steer it, not any proven manipulation of the gear lever or handbrake by the plaintiff. The activity was obviously hazardous, and the defendant breached his duty of care in the use or operation of the car. The plaintiff also departed from the standard of reasonable care by mutually engaging in the hazardous rolling activity, and her damages were reduced by...

Jurisdiction
Australia
Judgment Date
28 August 2020
Procedural Posture
Civil Personal Injury Damages Claim Arising From a Motor Vehicle Accident Under the Motor Accidents Compensation Act 1999 (nsw) / Principal Judgment After Hearing
Outcome
Judgment for the plaintiff, with damages reduced by 45% for contributory negligence.
Legal Topics
['motor Vehicle Accident' 'breach of Duty of Care' 'definition of Driver' 'meaning of in Charge' 'motor Accident' 'dangerous Situation' 'causation' 'contributory Negligence' 'assessment of Damages' 'jones V Dunkel Inference']
['torts' 'negligence' 'motor Accidents' 'civil Liability' 'damages'] ['motor Vehicle Accident' 'breach of Duty of Care' 'definition of Driver' 'meaning of in Charge' 'motor Accident' 'dangerous Situation' 'causation' 'contributory Negligence' 'assessment of Damages' 'jones V Dunkel Inference']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Did the circumstances in which the plaintiff was injured constitute a motor accident within s 3 of the Motor Accidents Compensation Act 1999 (NSW)?' 'Was the defendant the driver of the motor vehicle in the circumstances of the accident?' "If the defendant was the driver, did he breach his duty of care in the use or operation of the motor vehicle and cause the plaintiff's injuries?" "Did the defendant as owner of the motor vehicle breach his duty of care in the use or operation of the motor vehicle and cause the plaintiff's injuries?" 'Was the plaintiff guilty of contributory negligence and, if so, what reduction of damages was just and equitable?']

Ratio Decidendi

The defendant was in charge of the car as a driver and also its owner when he initiated and participated in the plan to remove the brick chocks and roll the car down the sloping driveway. The operative cause of the plaintiff's injury was the removal of the chocks and the rolling of the car without anyone in the driver's seat to brake or steer it, not any proven manipulation of the gear lever or handbrake by the plaintiff. The activity was obviously hazardous, and the defendant breached his duty of care in the use or operation of the car. The plaintiff also departed from the standard of reasonable care by mutually engaging in the hazardous rolling activity, and her damages were reduced by...

Court Disposition

Judgment for the plaintiff, with damages reduced by 45% for contributory negligence.

Orders

  • ['Judgment for the plaintiff in the sum of $171,486.' 'The Insurer is to have a credit from the judgment sum on account of s 83 payments in the amount of $6,471.' "Defendant to pay the plaintiff's costs."]