AB v Keanes

[2019] NSWDC 693

District Court

New South Wales

Medium Neutral Citation:	AB v Keanes [2019] NSWDC 693
Hearing dates:	29-30 October 2019
Date of orders:	20 November 2019
Decision date:	20 November 2019
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the plaintiff in the sum of $77,768.31. (2) The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed. (3) Liberty to the parties to apply within 14 days to vary the order in (2) above or to correct any mathematical errors in my calculations. (4) Exhibits to be returned in 28 days. (5) Pursuant to section 77 of the Civil Procedure Act 2005 (NSW), the amount referred to in order (1) is to be paid to the NSW Trustee and Guardian for investment on behalf of the plaintiff until she attains the age of 18 years.
Catchwords:	Torts – negligence – motor vehicle accident – liability not in issue – extent of injuries to child pillion passenger on a motorcycle – extent of residual disabilities and injuries in issue – whether plaintiff has established a need for past or future commercial or domestic assistance – whether a loss of future earning capacity established
Legislation Cited:	Civil Procedure Act 2005 (NSW) Motor Accidents Compensation Act 1999 (NSW)
Cases Cited:	Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 Cairncross v Hewagama [2018] NSWDC 166 Fegin bht Rozenauers v Lane Cove House Pty Ltd [2007] NSWCA 88 Graham v Baker (1961) 106 CLR 340 New South Wales v Moss (2000) 54 NSWLR 536 Russell v Rail Infrastructure Corporation [2007] NSWSC 447 Sretenovic v Reed [2009] NSWCA 280
Category:	Principal judgment
Parties:	AB by her Tutor BB (Plaintiff) Lynette Keanes (Defendant)
Representation:	Counsel: A Canceri (Plaintiff) D Hanna (Defendant)   Solicitors: CMC Lawyers (Plaintiff) Moray & Agnew (Defendant)
File Number(s):	2018/00374331

Judgment

1. In these proceedings, the plaintiff, AB, seeks by her tutor mother damages under the Motor Accidents Compensation Act 1999 (NSW) (“the Act”) for personal injuries suffered by her in a motor vehicle accident which occurred on 1 April 2016 in Penrith in Sydney.

2. The plaintiff, who was then 12 years of age, was travelling as a pillion passenger on a motorcycle being driven by her father. She was wearing a motorcycle helmet at the time. The motorcycle was travelling along Parker Street at the intersection of Glebe Place in Penrith when the defendant’s motor vehicle drove from Glebe Place into the intersection and collided with the motorcycle.

3. Liability for the accident is not in issue. There is also no question of contributory negligence.

4. The case in summary therefore, is one for the assessment of damages to which the plaintiff is entitled. The plaintiff has not reached the impairment threshold of greater than 10% which permits the award of damages to her for non-economic loss under s 131 of the Act.

5. The plaintiff claims damages for:

1. Past and future out-of-pocket expenses;

2. Future loss of earning capacity on a buffer basis;

3. A loss of superannuation benefits which should be…