Clapp by his tutor Hilton v Brady

District Court

New South Wales

Medium Neutral Citation:	Clapp by his tutor Hilton v Brady [2018] NSWDC 312
Hearing dates:	7, 8 and 9 May 2018
Date of orders:	30 May 2018
Decision date:	30 May 2018
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Judgment for the plaintiff for $306,592.69. (2) Defendants to pay plaintiff’s costs. (3) Liberty to apply in relation to costs. (4) Exhibits retained for 28 days.
Catchwords:	TORT – personal injury – motor vehicle accident - assessment of damages – no issue of principle
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW), s 131
Cases Cited:	Allard v Jones Lang Lasalle (Vic) Pty Ltd [2014] NSWCA 325 Graham v Baker (1961) 106 CLR 340 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Martin v Minister for Health [2016] WADC 15 Mason v Demasi [2009] NSWCA 227 Smith v Alone (2017) 82 MVR 309 Sretenovic v Reed [2009] NSWCA 280 Townsend v O’Donnell [2016] NSWCA 288 Varga v Galea [2011] NSWCA 76
Category:	Principal judgment
Parties:	Plaintiff: Martyn Clapp by his tutor Grant Clapp Hilton First Defendant: Adam William Brady Second Defendant: Nominal Defendant
Representation:	Counsel: Plaintiff: Mr K W Andrews First Defendant: Mr J Turnbull SC / Ms S Warren Second Defendant: Mr B Kelleher   Solicitors: Plaintiff: Wyatts Compensation Lawyers First Defendant: McInnes Wilson Lawyers Second Defendant: Moray & Agnew
File Number(s):	2015/94525
Publication restriction:	None

Judgment

The plaintiff’s claim for damages for personal injury

1. The plaintiff, by statement of claim filed on 30 March 2015, brings proceedings for damages for injuries suffered while he was a passenger in a motor vehicle travelling along Coorabell Road near Federal in the State of New South Wales. The car collided with a tree following the driver swerving to avoid a collision with an oncoming truck.

2. Although both the Nominal Defendant and the driver of the vehicle are named as defendants, liability between the defendants (including the cross-claims between them) has been resolved, on the basis that the assessment of damages in relation to the plaintiff will simply be awarded against “the defendants”. Throughout this judgment the words “the defendants” are used on some occasions and the name of the driver (the first defendant) is used when appropriate. I have nevertheless included the names of the solicitors and counsel for the second defendant in the appearances for this judgment, in the event that this is necessary for costs assessment purposes.

3. The issues for determination relate only to the plaintiff’s claim for damages. He suffered significant emotional distress as well as physical injuries and the difficulties his solicitor had in obtaining instructions were such that a tutor was appointed. More recent medical evidence indicates that a tutor is no longer necessary and, by agreement between the parties, I have been asked to make orders concerning the removal of the tutor, in light of the most recent medical evidence, and I have done so, in orders made separately to this judgment.

The circumstances leading to the accident

4. The plaintiff…