Croizet v Shustov - [2017] NSWDC 331

District Court

New South Wales

Medium Neutral Citation: Croizet v Shustov [2017] NSWDC 331
Hearing dates: 23, 24, 25 and 27 October 2017
Date of orders: 20 November 2017
Decision date: 20 November 2017
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
In respect of the claim for Nervous Shock:
(1) Judgment for the plaintiff in the sum of $664,241.00.
(2) The defendant to pay the plaintiff’s costs.
In respect of the claim under the Compensation to Relatives Act 1897 (NSW):
(1) Judgment for the plaintiff in the sum of $780,000 with such sum to be apportioned as follows: (a) Payment of the sum of $762,000.00 to Selina Croizet. (b) Payment of the sum of $6,000.00 to Daniel Croizet. (c) Pursuant to ss 75-77 Civil Procedure Act 2005 (NSW), payment of the sum of $12,000.00 being the sum to which Lewis Croizet is entitled to the Trust Account of the plaintiff’s solicitors, Stiles Lawyers, with such sum to be invested in an appropriate Trustee investment by those solicitors and to be paid to Lewis Croizet upon his reaching the age of 18 years old with any appropriate interest earned thereon.
(2) Defendant to pay the plaintiff’s costs.
Catchwords: TORT – nervous shock - plaintiff brings claim for damages following the death of her husband in traumatic circumstances near her home – admission of breach of duty of care – contributory negligence by the deceased - quantification of non-economic loss for severe psychiatric disabilities – no issue of principle
Legislation Cited: Civil Liability Act 2002 (NSW), ss 3B(2)(a), 5R and 5S
Compensation to Relatives Act 1897 (NSW)
Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9
Motor Accidents Compensation Act 1999 (NSW), s 138
Road Rules 2014 (NSW), rr 138, 140, 141, 144 and 150
Cases Cited: Bitupave Ltd t/as Boral Asphalt v Pillinger [2015] NSWCA 298
Crown v Panetta (1997) 26 MVR 332
Kraus v Sartori [2016] NSWDC 102
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34
South Western Sydney Local Health District v Sorbello [2017] NSWCA 201
Zilio v Lane [2009] NSWDC 226
Category: Principal judgment
Parties: Plaintiff: Selina Croizet
Defendant: Leon Shustov
Representation:
Counsel:
Plaintiff: Mr W M Fitzsimmons
Defendant: Ms M A Kumar
Solicitors:
Plaintiff: Stiles Lawyers
Defendant: Curwoods Lawyers

File Number(s): 2016/59491
Publication restriction: Parties’ names anonymised

Judgment

Introduction

The plaintiff brings proceedings for damages pursuant to the Compensation to Relatives Act 1897 (NSW) and the Motor Accidents Compensation Act 1999 (NSW) arising from the circumstances in which the plaintiff suffered nervous shock following the death of her husband in a collision at the intersection of Yarrara Road and Wells Street, Thornleigh, outside the Maronite Church. The plaintiff learned of the accident shortly after it occurred when someone at the Church telephoned one of her sons and she and the family went to the scene of the accident.
At the request of the parties I have de-identified the parties’ names.

The issues not in dispute

The defendant admits breach of his duty in that he:

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 Croizet v Shustov

Details

AGLC: Croizet v Shustov [2017] NSWDC 331
Case: [2017] NSWDC 331
Decision Date: 20 November 2017

CaseChat Overview and Summary

In the matter of Croizet v Shustov, the Supreme Court of New South Wales was tasked with determining claims for damages arising from the death of a husband, who was killed in a traumatic incident near his home. The plaintiff, Selina Croizet, sought compensation for nervous shock as well as for the loss of her husband under the Compensation to Relatives Act 1897 (NSW). The defendant, Mr. Shustov, admitted to a breach of duty of care but contested the amount of damages and the contributory negligence of the deceased. The court was required to address several legal issues, including the quantification of non-economic loss due to severe psychiatric disabilities and the impact of contributory negligence on the apportionment of damages.

The court examined the principles governing claims for nervous shock, particularly in cases where the plaintiff witnesses a traumatic event involving a close family member. Despite the defendant's admission of breach, the court had to consider the deceased's contributory negligence in determining the appropriate compensation. The court also needed to quantify the non-economic loss due to the plaintiff's severe psychiatric disabilities, taking into account expert evidence and the specific circumstances of the case. Given the traumatic nature of the incident and its direct impact on the plaintiff, the court concluded that no significant issues of principle were at stake.

After careful consideration of the evidence and arguments presented, the court determined that the plaintiff was entitled to compensation for her nervous shock and for the loss of her husband. The court awarded damages of $664,241.00 for the nervous shock claim and $780,000 under the Compensation to Relatives Act. The court further ordered that this sum be apportioned between the plaintiff and her son, with a portion to be held in trust for the minor child. The defendant was also ordered to pay the plaintiff's costs. This comprehensive approach ensured that the plaintiff received appropriate compensation for her losses while considering the contributory negligence of the deceased.

Orders

Orders of the court

In respect of the claim for Nervous Shock:

(1) Judgment for the plaintiff in the sum of $664,241.00.

(2) The defendant to pay the plaintiff’s costs.

In respect of the claim under the Compensation to Relatives Act 1897 (NSW):

(1) Judgment for the plaintiff in the sum of $780,000 with such sum to be apportioned as follows: (a) Payment of the sum of $762,000.00 to Selina Croizet. (b) Payment of the sum of $6,000.00 to Daniel Croizet. (c) Pursuant to ss 75-77 Civil Procedure Act 2005 (NSW), payment of the sum of $12,000.00 being the sum to which Lewis Croizet is entitled to the Trust Account of the plaintiff’s solicitors, Stiles Lawyers, with such sum to be invested in an appropriate Trustee investment by those solicitors and to be paid to Lewis Croizet upon his reaching the age of 18 years old with any appropriate interest earned thereon.

(2) Defendant to pay the plaintiff’s costs.

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:	Croizet v Shustov [2017] NSWDC 331
Hearing dates:	23, 24, 25 and 27 October 2017
Date of orders:	20 November 2017
Decision date:	20 November 2017
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	In respect of the claim for Nervous Shock: (1) Judgment for the plaintiff in the sum of $664,241.00. (2) The defendant to pay the plaintiff’s costs. In respect of the claim under the Compensation to Relatives Act 1897 (NSW): (1) Judgment for the plaintiff in the sum of $780,000 with such sum to be apportioned as follows: (a) Payment of the sum of $762,000.00 to Selina Croizet. (b) Payment of the sum of $6,000.00 to Daniel Croizet. (c) Pursuant to ss 75-77 Civil Procedure Act 2005 (NSW), payment of the sum of $12,000.00 being the sum to which Lewis Croizet is entitled to the Trust Account of the plaintiff’s solicitors, Stiles Lawyers, with such sum to be invested in an appropriate Trustee investment by those solicitors and to be paid to Lewis Croizet upon his reaching the age of 18 years old with any appropriate interest earned thereon. (2) Defendant to pay the plaintiff’s costs.
Catchwords:	TORT – nervous shock - plaintiff brings claim for damages following the death of her husband in traumatic circumstances near her home – admission of breach of duty of care – contributory negligence by the deceased - quantification of non-economic loss for severe psychiatric disabilities – no issue of principle
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 3B(2)(a), 5R and 5S Compensation to Relatives Act 1897 (NSW) Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9 Motor Accidents Compensation Act 1999 (NSW), s 138 Road Rules 2014 (NSW), rr 138, 140, 141, 144 and 150
Cases Cited:	Bitupave Ltd t/as Boral Asphalt v Pillinger [2015] NSWCA 298 Crown v Panetta (1997) 26 MVR 332 Kraus v Sartori [2016] NSWDC 102 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 South Western Sydney Local Health District v Sorbello [2017] NSWCA 201 Zilio v Lane [2009] NSWDC 226
Category:	Principal judgment
Parties:	Plaintiff: Selina Croizet Defendant: Leon Shustov
Representation:	Counsel: Plaintiff: Mr W M Fitzsimmons Defendant: Ms M A Kumar Solicitors: Plaintiff: Stiles Lawyers Defendant: Curwoods Lawyers
File Number(s):	2016/59491
Publication restriction:	Parties’ names anonymised