She wasn’t driving

Where a person sues for death benefits, can their own contributory negligence be raised against them?

Facts

Walter Meek was about to have a very bad evening.  Meek, employed as a bus driver by Guiseppe Locco, was driving on Williams Road in East St Kilda, Australia on the night of 5 June 1941.  It was never clear how he came to hit the car driven by Alfred Carstein.  There had been no rain that dayThe collision killed a 40 year old passenger in the car, Margaret Carstein, who was Alfred’s mother.

Litigation

Mrs Carstein left behind a husband and thirteen children.  Her widower, George Carstein, retained the law firm of JW Galbally (now Galbally & O’Bryan).  He sued Locco on his own behalf and on behalf of their children under Part III of the Wrongs Act 1928.  Sections 15 and 16 of the Act relevantly provided that

15. Whensoever the death of a person is caused by a wrongful act neglect or default and the act neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages notwithstanding the death of the person injured and although the death has been caused under such circumstances as amount in law to felony.

16. Every such action shall be for the benefit of the wife husband parent and child of the person whose death has been so caused …

These provisions live on in ss.16 and 17 of the Wrongs Act 1958.

MMTB Buses 1940
Leyland Titan buses, Melbourne, 1940 (Image from here)

Locco raised the defence that Mrs Cartein’s widower guilty of contributory negligence “by his servant or agent, Alfred Leonard Carstein”.  George Carstein applied to strike out that part of the defence.

Ruling

The application was ruled on by Gavan Duffy J.  His Honour ordered that the relevant parts of the defence be struck out.  He reasoned that in a case such as this, the issue of negligence was decided as if the deceased were herself bringing the case.  If the defendant’s negligence would have entitled the deceased to sue successfully, then the defendant would be liable.  It followed that the negligence of either George or Alfred Carstein was simply irrelevant.

Carstein v Locco [1941] ALR 330

Postscript

The matter was ultimately heard by a jury which found Meek and Locco to have been negligent.  Mr Carstein and his family were awarded damages of £2,000 (current value $161,936.21): Carstein v Locco (1941) Morwell Advertiser, 27 November 1941 at 1.

Asquith v Transport Accident Comm’n (2014) H&FLR 2014-52

Jessica Asquith v Transport Accident Commission (2014) H&FLR 2014-52

County Court of Victoria

22 July 2014

Coram: Judge Macnamara

Appearing for the Plaintiff: Ms Jacinta Forbes (instructed by Riordan Legal Pty Ltd)
Appearing for the Defendant: Mr Paul Jens and Ms Sasha Manova (instructed by the Solicitor to the Transport Accident Commission)

Catchwords: Australia – Victoria – transport accident – serious injury – athlete – cycling.

Facts:  The plaintiff suffered injuries including vertebral fractures* in a road accident on 29 January 2011.  She applied to the Court for a finding that she had sustained a ‘serious injury’, so to be entitled to sue and claim common law damages for her injuries from the other driver.  Section 93(17) of the Transport Accident Act 1986 (Vic) relevantly defines a ‘serious injury’ as “serious long-term impairment or loss of a body function”

It was found that her capacity to engage in her preferred employment had been limited but was substantially intact.  Concerning other consequences, the plaintiff’s evidence was that she had been a keen athlete prior to the accident including engaging in cycling long distances.  It was accepted by the court that her injuries would cause pain and restrictions which would prevent her engaging in outdoor recreation with the same freedom as before the accident.  However, she had retained the capacity to engage to a degree in horse riding, jet skiing and mountain biking.

Held: Dismissing the application, that –

1.  Whether the plaintiff satisfies the serious injury test must be assessed at the date of the hearing.

Phelan v Transport Accident Commission [2013] VSCA 306, followed.

2.  For an injury to be classed as ‘serious’ the impairment or loss of function suffered  must be both serious and long term.  To be considered serious, the consequences must be serious for the particular applicant.  The question is whether the injury, when compared with other cases, is more than significant or marked, and at least very considerable.  The Court considered that the plaintiff’s injuries were marked, but not very considerable.

Humphries v Poljak [1992] 2 VR 129, followed.

Judgment

The Court’s judgment is available here.

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* Cf Harsted v Prior Lake-Savage School District (2013) H&FLR 2014-51