CAN YOU INSTITUTE A CLAIM FOR DAMAGES DUE TO NEGLIGENCE TWICE? IS IT AN ABUSE OF PROCESS?
Yalda v Mshref [2021] NSWSC 624 (2 June 2021)
This is an appeal in a claim for damages due to negligence where the plaintiff alleges abuse of process when the defendant instituted a second proceeding involving the same subject matter.
Facts:
First statement of claim
Ms Mshref as plaintiff, sued Gary Singh as first defendant and Madan Corporation Pty Limited trading as Titan Transport as the second defendant (“Madan”) seeking damages in the sum of $20,000.
Ms Mshref claims that the vehicle she was driving was damaged by Gary Singh when the truck he was driving collided into the rear of her vehicle (“second vehicle”). It was alleged that the truck Mr Singh was driving was owned by Madan (“first vehicle”). Ms Mshref pleaded that the accident occurred as a result of the negligence of or breach of the duty of care by Mr Singh.
On 27 June 2019, default judgment was entered in favour of Ms Mshref against Mr Singh, inclusive of costs. Default judgment was also obtained against Madan. No enforcement action has taken in relation to the default judgment entered against Madan.
Second statement of claim
On 15 August 2019, Ms Mshref commenced the Local Court proceedings against Ms Yalda (the son of Ms Mshref, who is the manager of Madan) by way of second statement of claim. This claim also sought relief for loss and damage to Ms Mshref’s motor vehicle caused by the accident.
The Magistrate, after hearing the proceedings in dispute (in the general division), entered judgment for Ms Mshref against Mr Singh in the sum of $20,597.53 plus interest from 27 February 2019 to 4 August 2010 in the sum of $1501.90.
The plaintiff (Ms Yalda) appeals on the grounds that the bringing of proceedings by Ms Mshref with respect of the same subject matter amounts to an abuse of process. Ms Yalda submitted that there was evidence before the Magistrate that Ms Mshref had commenced earlier proceedings in respect of the same accident and obtained a default judgment against Mr Singh.
Issue: Is the bringing of proceedings by Ms Mshref with respect to the same subject matter amounts to an abuse of process?
Law:
- Section 5(1) of the Law Reform (Miscellaneous Provisions) Act (NSW): Where damage is suffered by any person as a result of a tort (whether a crime or not):
(a) judgment recovered against any tort-feasor liable in respect of that damage shall not be a bar to an action against any other person who would, if sued, have been liable as a joint tort-feasor in respect of the same damage;
(b) if more than one action is brought in respect of that damage by or on behalf of the person by whom it was suffered, ... by way of damages shall not in the aggregate exceed the amount of the damages awarded by the judgment first given; - and in any of those actions, other than that in which judgment is first given, the plaintiff shall not be entitled to costs unless the court is of opinion that there was reasonable ground for bringing the action.
Analysis:
Section 5(1)(a) expressly permits that a judgment recovered against any tortfeasor liable for damages shall not be a bar to an action against another tortfeasor in respect of the same damages. On this basis, these proceedings cannot be said to be an abuse of process.
However, so far as costs are concerned, S5(1)(b) states that if more than one action is brought in respect of that damage by or on behalf of the person by whom it was suffered, ... by way of damages shall not in the aggregate exceed the amount of the damages awarded by the judgment first given; and in any of those actions, other than that in which judgment is first given, the plaintiff shall not be entitled unless the court is of the opinion that there was reasonable ground for bringing the action.
Conclusion: The amount of damages awarded in the second proceedings is varied from $20,597.93 to $20,000.
