What happened
In June 2016 on a narrow Punchbowl street, the two vehicles met and the plaintiff's car first struck a parked vehicle. The plaintiff got out, swore and made demands of the defendant, and reached through the open driver's window; when the frightened defendant moved forward, the plaintiff moved alongside the car and her right foot went under the rear wheel. She sustained a comminuted displaced navicular fracture requiring surgery and rehabilitation.
The issues
Although the defendant admitted negligence in moving while the plaintiff was close to the car, the Court had to compare that fault with the plaintiff's confrontational conduct and failure to step back to safety. Quantum also turned on whether the claimed neck, back and knee conditions, rather than only the foot injury, were caused by this incident and supported the claimed economic and care losses.
The court's decision
The Court found that the plaintiff's aggressive words and attempt to control the vehicle caused the defendant to become frightened and drive away, and that following the moving car rather than stepping back was a significant further failure to protect herself. Although the defendant's vehicle had the greater capacity to cause harm, the comparative assessment placed two-thirds of the responsibility on the plaintiff. The Court also confined recoverable damage to the right-foot injury because causation of the neck, back and knee complaints was not proved, assessing AUD 95,698.85 before reduction and entering judgment for AUD 31,899.62.
Understanding the figures
The historical gross assessment of AUD 95,698.85 comprised AUD 1,406.85 past out-of-pocket expenses, AUD 50,000 future economic loss, AUD 10,000 future medical expenses, AUD 7,644 past care, AUD 10,000 future care, AUD 11,648 past s 15B loss and a AUD 5,000 future s 15B buffer. After the two-thirds contributory-negligence reduction, judgment was AUD 31,899.62; costs were determined separately in Bekdache v Chen (No 2) [2021] NSWDC 56.
What this case shows
The decision illustrates that contributory negligence may involve the whole sequence that created the risk and provoked the defendant's response, not merely the plaintiff's position at the instant of impact. It also shows that reported symptoms and expert opinions may be excluded from quantum where contemporaneous records, the injury mechanism and a later accident undermine causation.
Why another case may differ
The apportionment depended on CCTV, the parties' conduct and the confined roadway; it does not prescribe the same percentage for other pedestrian-vehicle incidents. A separate 2021 costs judgment did not alter the damages figure but changed who bore costs for different periods, so this judgment alone cannot establish the plaintiff's net financial recovery.
Applying it to your claim
Different facts, evidence or procedures, an appeal, or a change in the law may affect how this decision applies. This is general information, not a report of a case handled by Park & Co Lawyers.
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