Danielle Duncan v The Nominal Defendant

[2013] NSWDC 117

District Court

New South Wales

Medium Neutral Citation:	Danielle Duncan v The Nominal Defendant [2013] NSWDC 117
Hearing dates:	13, 14, 15,16 and 17 May 2013
Decision date:	12 July 2013
Before:	Judge Andrew Haesler SC DCJ
Decision:	Judgment for the Plaintiff in the sum of $314,566.00
Catchwords:	Motor Vehicle accident Contributory negligence Assessment of damages Economic loss only
Legislation Cited:	Civil Liability Act 2002 Civil Procedure Act 2005. Law Reform (Miscellaneous Provisions) Act 1965 Motor Accidents Act 1988 Motor Accidents Compensation Act 1999 Uniform Civil Procedures Rules (UCPR)
Cases Cited:	Henderson v Hassel (1986) 3 MVR 359 James v Williams [2003] SASC 22 O'Neil v Liddle [2012] NSWCA 267 Sibley v Kais (1967) 118 CLR 424 Waverley Council v Ferreira [2005] NSWCA 418.
Category:	Principal judgment
Parties:	Danielle Duncan (Plaintiff) The Nominal Defendant (Defendant)
Representation:	Ms K Balendra (Plaintiff) Mr W Fitzsimmons (Nominal Defendant) Mr C Jeremy (Cater & Blumer) (Plaintiff) Ms A Crosbie (Moray & Agnew Lawyers) (Defendant)
File Number(s):	2011/363218

Judgment

Introduction

1. On 3 March 2004, on the Kidman Way south of the Murrumbidgee River, there was a collision between a light coloured Suzuki Sierra utility, driven by Shaun Filmer and a green Toyota Camry sedan driven by the Plaintiff, Danielle Duncan. The Plaintiff suffered injuries but they fall short of the10% permanent impairment level, thus precluding her from making a claim for non-economic loss: s 131 Motor Accidents Compensation Act 1999 (the Act). She says however that the accident caused her disabilities that have resulted in considerable economic loss. She claims compensation for that loss together with future domestic assistance and treatment costs.

1. It is not in dispute that Shaun Filmer breached his duty of care to other road users. The Nominal Defendant is the proper Defendant in this matter as the vehicle he drove was uninsured. The Defendant disputes the level of loss claimed and compensation sought and submits that any compensation awarded be proportionally reduced because the Plaintiff's own negligence contributed to her injuries.

1. The Plaintiff's claim was heard before me at Griffith District Court on 13, 14, 15, 16 and 17 May 2013. These are my reasons for rejecting the asserted contributory negligence and awarding damages of $314,566.00 to the Plaintiff.

The accident

1. The collision occurred at the intersection of Kidman Way and a farm road known locally as Jimmy Cattanach Road. That intersection is north of Coleambally and south of Darlington Point, a small town on the Murrumbidgee River. Just before midday on 3 March 2004 Danielle Duncan was driving north on Kidman Way in a work vehicle, a Toyota Camry sedan. She had just picked up pathology samples at Coleambally and was taking them to her employer, a pathology service at Griffith Base Hospital. The day was clear and sunny. Kidman Way is a straight clear sealed road. It has single lanes in both directions. It runs roughly north - south through the Murrumbidgee Irrigation Area. The road conditions were good and the traffic light. The area is flat.…