Cairncross v Hewagama - [2018] NSWDC 166

District Court

New South Wales

Medium Neutral Citation: Cairncross v Hewagama [2018] NSWDC 166
Hearing dates: 20 and 21 June 2018
Date of orders: 25 June 2018
Decision date: 25 June 2018
Jurisdiction: Civil
Before: Russell SC DCJ
Decision:
(1)   Judgment for the plaintiff against the defendant for $28,250.
(2) Order pursuant to s 77(2) of the Civil Procedure Act 2005 that the judgment sum be paid into court.
(3) Order pursuant to s 77(4) of the Civil Procedure Act 2005 that the sum of $1,000 be paid out to the plaintiff’s solicitor on his undertaking to repay or reimburse the past out-of-pocket expenses.
(4) Order pursuant to s 77(4) of the Civil Procedure Act 2005 that the balance of monies in court of $27,250 be paid out to the NSW Trustee & Guardian for management until the plaintiff turns 18.
(5)   Order the defendant to pay the plaintiff’s costs.
(6)   Liberty to approach my Associate within 7 days if either party seeks a different costs order.

Catchwords: DAMAGES – future treatment – future loss of earning capacity - buffer
Legislation Cited: Motor Accidents Compensation Act 1999
Cases Cited: Russell v Rail Infrastructure Corporation [2007] NSWSC 447
Nominal Defendant v Gardikiotis [1996] HCA 53
Category: Principal judgment
Parties: Britney Cairncross bhnf Glen Cairncross (plaintiff)
Sashini Charuka Hewagama (defendant)
Representation:
Counsel:
T Hickey (plaintiff)
D Petrushnko (defendant)
Solicitors:
Law Advice Compensation Lawyers (plaintiff)
Moray & Agnew (defendant)

File Number(s): 2017/374332

Judgment

Introduction

The plaintiff was injured when she was a passenger in a motor vehicle driven by her father, which was involved in an accident on 8 December 2014. She was 10 years old at the time. She was a rear seat passenger.
A vehicle driven by the defendant crashed into the back of the family car. Breach of duty of care was admitted by the defendant. The matter proceeded as an assessment of damages only.
The plaintiff and her father gave evidence. Both witnesses struck me as honest and straightforward. Both were witnesses of truth. Everything they said was borne out by the contemporaneous documentary material. Further, the plaintiff herself was not cross-examined.

Evidence of the Plaintiff

The plaintiff was born on 11 September 2004. She was 10 years old at the time of the accident and was 13 at the date of trial. She is in Year 8 at high school.
The plaintiff felt a large impact when the defendant’s car ran into the back of her family car. She remembers screaming and crying and feeling shocked. Straight away she felt a sharp stabbing pain in both her neck and her lower back. The family went home and she was given non-prescription pain killing medication.
The day after the accident she saw a general practitioner. She told this doctor about her pains and problems. She said that those problems have stayed the same since the accident. The plaintiff still takes Panadol and Nurofen for pain. She also has pain in both shoulders, which comes from her neck. She takes…

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.

Continue reading Cairncross v Hewagama

Details

AGLC: Cairncross v Hewagama [2018] NSWDC 166
Case: [2018] NSWDC 166
Decision Date: 25 June 2018

CaseChat Overview and Summary

The case of Cairncross v Hewagama involved the plaintiff, Cairncross, who was suing the defendant, Hewagama, for damages resulting from injuries sustained in an incident. The dispute was centred on the quantification of future treatment costs, loss of earning capacity, and the appropriate allocation of damages pending the plaintiff's adulthood. The matter was heard and determined in the District Court of New South Wales. The plaintiff, represented by legal counsel, sought to establish the full extent of the defendant's liability for the injuries that would require ongoing medical treatment and would likely impact the plaintiff's future earning potential.

The court was tasked with evaluating the evidence provided by the plaintiff regarding the expected future medical treatments, the impact of these treatments on the plaintiff's quality of life, and the projected financial implications for the plaintiff's earning capacity. Additionally, the court had to consider the appropriate method of holding the awarded damages, taking into account the plaintiff's minority status. The legal issues revolved around the calculation of future economic losses and the implementation of a buffer to protect the awarded damages until the plaintiff reached the age of majority.

In delivering the judgment, the court meticulously assessed the evidence and the arguments presented by both parties. The court found that the plaintiff was entitled to a specific sum for future treatment costs and loss of earning capacity. The court determined that a buffer should be applied to the awarded damages to account for inflation and the uncertainties of future economic conditions. The court also concluded that the funds should be held in a trust until the plaintiff reached the age of 18, to ensure the money was invested and preserved for the plaintiff's future needs. The court ordered the defendant to pay the plaintiff's costs of the proceeding. The judgment detailed the specific financial orders, including the payment of the awarded sum into court, partial payment to the plaintiff’s solicitor for past out-of-pocket expenses, and the allocation of the remaining funds to the NSW Trustee & Guardian.

Orders

Orders of the court

(1) Judgment for the plaintiff against the defendant for $28,250.

(2) Order pursuant to s 77(2) of the Civil Procedure Act 2005 that the judgment sum be paid into court.

(3) Order pursuant to s 77(4) of the Civil Procedure Act 2005 that the sum of $1,000 be paid out to the plaintiff’s solicitor on his undertaking to repay or reimburse the past out-of-pocket expenses.

(4) Order pursuant to s 77(4) of the Civil Procedure Act 2005 that the balance of monies in court of $27,250 be paid out to the NSW Trustee & Guardian for management until the plaintiff turns 18.

(5) Order the defendant to pay the plaintiff’s costs.

(6) Liberty to approach my Associate within 7 days if either party seeks a different costs order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Cairncross v Hewagama [2018] NSWDC 166
Hearing dates:	20 and 21 June 2018
Date of orders:	25 June 2018
Decision date:	25 June 2018
Jurisdiction:	Civil
Before:	Russell SC DCJ
Decision:	(1) Judgment for the plaintiff against the defendant for $28,250. (2) Order pursuant to s 77(2) of the Civil Procedure Act 2005 that the judgment sum be paid into court. (3) Order pursuant to s 77(4) of the Civil Procedure Act 2005 that the sum of $1,000 be paid out to the plaintiff’s solicitor on his undertaking to repay or reimburse the past out-of-pocket expenses. (4) Order pursuant to s 77(4) of the Civil Procedure Act 2005 that the balance of monies in court of $27,250 be paid out to the NSW Trustee & Guardian for management until the plaintiff turns 18. (5) Order the defendant to pay the plaintiff’s costs. (6) Liberty to approach my Associate within 7 days if either party seeks a different costs order.
Catchwords:	DAMAGES – future treatment – future loss of earning capacity - buffer
Legislation Cited:	Motor Accidents Compensation Act 1999
Cases Cited:	Russell v Rail Infrastructure Corporation [2007] NSWSC 447 Nominal Defendant v Gardikiotis [1996] HCA 53
Category:	Principal judgment
Parties:	Britney Cairncross bhnf Glen Cairncross (plaintiff) Sashini Charuka Hewagama (defendant)
Representation:	Counsel: T Hickey (plaintiff) D Petrushnko (defendant) Solicitors: Law Advice Compensation Lawyers (plaintiff) Moray & Agnew (defendant)
File Number(s):	2017/374332