Bushby v The Nominal Defendant - [2019] NSWDC 733

District Court

New South Wales

Medium Neutral Citation: Bushby v The Nominal Defendant [2019] NSWDC 733
Hearing dates: 24-27 September 2019; 12 November 2019 (last written submissions); 21 November 2019 (oral submissions)
Date of orders: 04 December 2019
Decision date: 04 December 2019
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
(1) Judgment for the plaintiff.
(2) The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.
(3) Liberty to the parties to seek a different costs order to (2) above within 14 days.
(4) The parties are to bring in agreed short minutes of order reflecting the reasons for decision and the agreed deduction for contributory negligence.
(5) Liberty to apply to the Associate to Dicker DCJ to relist the matter if agreement cannot be reached as to the appropriate orders or if there need to be corrections to the calculations.

Catchwords: Torts – negligence – motor vehicle accident – liability not in dispute and contributory negligence percentage agreed – extent of the plaintiff's injuries arising from the accident – voluminous medical opinions expressing different views – domestic assistance – childcare assistance - loss of future earning capacity
Legislation Cited: Civil Liability Act 2002 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Cases Cited: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Sretenovic v Reed [2009] NSWCA 280
White v Benjamin [2015] NSWCA 75
Category: Principal judgment
Parties: Ronald Noel Bushby (Plaintiff)
The Nominal Defendant (Defendant)
Representation:
Counsel:
K Andrews (Plaintiff)
J Catsanos SC (Defendant)
Solicitors:
LHD Lawyers (Plaintiff)
Moray & Agnew (Defendant)

File Number(s): 2014/00262312

Judgment

In these proceedings, the plaintiff, Mr Ronald Bushby, seeks damages against the Nominal Defendant under the Motor Accidents Compensation Act 1999 (NSW) (“MACA”) for personal injuries to him as a result of the negligence of the driver of an unidentified vehicle which caused a motor vehicle accident on 4 November 2010 in Swinbourne Street, Botany in the State of New South Wales.
It is not in dispute that the plaintiff was riding his motorcycle behind a vehicle proceeding along Swinbourne Street near the intersection with Kurnell Street. An unidentified vehicle proceeded out of Kurnell Street and failed to give way to the vehicle behind which the plaintiff was travelling, causing that vehicle to brake suddenly and the plaintiff to take evasive action resulting in the plaintiff falling from his motorcycle and suffering injury.
There is no issue between the parties that the plaintiff has undertaken due enquiry and search in relation to the unidentified vehicle.
There has been agreement between the parties in relation to liability and contributory negligence. The parties have agreed that there was a breach of duty of care owed to the plaintiff by the driver of the unidentified vehicle for whom the defendant is responsible. There is also an agreement as to the percentage of the reduction for contributory negligence. The Court has not been informed of this agreed percentage.
Accordingly, the remaining issues are causation and an assessment of damages. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWDC 733
Decision Date: 04 December 2019

CaseChat Overview and Summary

The plaintiff, Bushby, sought compensation from the defendant for injuries sustained in a motor vehicle accident, where liability was not contested, and contributory negligence was agreed at 15%. The court was tasked with determining the extent of the plaintiff's injuries attributable to the accident, including medical expenses, domestic and childcare assistance, and loss of future earning capacity. The case involved numerous medical opinions, each offering differing perspectives on the severity and permanence of the plaintiff's injuries.

The primary legal issue was to accurately assess the plaintiff's injuries, which were complex and disputed by multiple medical experts. The court had to weigh the conflicting medical evidence and decide on the credibility and reliability of each opinion. Additionally, the court needed to calculate the appropriate compensation for domestic assistance, childcare assistance, and loss of future earning capacity based on the extent of the injuries found to be caused by the accident.

The court concluded that the plaintiff had suffered significant injuries resulting from the accident, which warranted compensation. It found the plaintiff's evidence regarding the extent of injuries and the impact on her life credible. The court meticulously analysed the medical evidence, ultimately assigning greater weight to the opinions that aligned with the plaintiff's account of her injuries and their impact. The court ordered the defendant to pay the plaintiff's costs as agreed or assessed, with liberty to apply for a different costs order if necessary. The court also mandated the parties to prepare agreed short minutes of order and allowed applications for relisting if needed for corrections or agreement on orders.

Orders

Orders of the court

(1) Judgment for the plaintiff.

(2) The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.

(3) Liberty to the parties to seek a different costs order to (2) above within 14 days.

(4) The parties are to bring in agreed short minutes of order reflecting the reasons for decision and the agreed deduction for contributory negligence.

(5) Liberty to apply to the Associate to Dicker DCJ to relist the matter if agreement cannot be reached as to the appropriate orders or if there need to be corrections to the calculations.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Bushby v The Nominal Defendant [2019] NSWDC 733
Hearing dates:	24-27 September 2019; 12 November 2019 (last written submissions); 21 November 2019 (oral submissions)
Date of orders:	04 December 2019
Decision date:	04 December 2019
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the plaintiff. (2) The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed. (3) Liberty to the parties to seek a different costs order to (2) above within 14 days. (4) The parties are to bring in agreed short minutes of order reflecting the reasons for decision and the agreed deduction for contributory negligence. (5) Liberty to apply to the Associate to Dicker DCJ to relist the matter if agreement cannot be reached as to the appropriate orders or if there need to be corrections to the calculations.
Catchwords:	Torts – negligence – motor vehicle accident – liability not in dispute and contributory negligence percentage agreed – extent of the plaintiff's injuries arising from the accident – voluminous medical opinions expressing different views – domestic assistance – childcare assistance - loss of future earning capacity
Legislation Cited:	Civil Liability Act 2002 (NSW) Motor Accidents Compensation Act 1999 (NSW)
Cases Cited:	Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 Sretenovic v Reed [2009] NSWCA 280 White v Benjamin [2015] NSWCA 75
Category:	Principal judgment
Parties:	Ronald Noel Bushby (Plaintiff) The Nominal Defendant (Defendant)
Representation:	Counsel: K Andrews (Plaintiff) J Catsanos SC (Defendant) Solicitors: LHD Lawyers (Plaintiff) Moray & Agnew (Defendant)
File Number(s):	2014/00262312