Danny Swinfield v Khudur Nasra

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Danny Swinfield v Khudur Nasra [2020] NSWDC 250
Hearing dates:	10-11 September 2019, 11-13 May 2020
Decision date:	29 May 2020
Jurisdiction:	Civil
Before:	Mahony SC DCJ
Decision:	Verdict and judgment for the plaintiff. For orders see [214]
Catchwords:	Torts; motor vehicle accident
Legislation Cited:	Civil Liability Act 2002 (NSW) Motor Accidents Compensation Act 1999 (NSW)
Cases Cited:	Commercial Union Assurance v Ferrcom (1991) 22 NSWLR 389 Kallouf v Middis [2008] NSWCA 61 Mason v Demasi [2009] NSWCA 227 Medlin v State Government Insurance Office (1995) 182 CLR 1 Purkess v Crittenden (1965) 114 CLR 164 Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 Simon v NRMA Insurance Ltd [1991] NSWCA 247 Watts v Rake (1960) 108 CLR 158
Category:	Principal judgment
Parties:	Danny Swinfield (Plaintiff) Khudur Nasra (Defendant)
Representation:	Counsel: R Sheldon SC/Ms K Boettcher (Plaintiff) J Turnbull SC/J Sleight (Defendant)   Solicitors: Brydens Lawyers Pty Limited Carroll & O’Dea Lawyers
File Number(s):	18/170533
Publication restriction:	Nil

TABLE OF CONTENTS

The Plaintiff’s claim - paragraph 1

Issues to be determined - paragraph 4

The plaintiff’s evidence - paragraph 6

The defendant’s evidence - paragraph 28

The plaintiff’s medical evidence - paragraph 54

The defendant’s medical evidence - paragraph 88

Cross-examination of the Orthopaedic specialists - paragraph 119

The plaintiff’s submissions - paragraph 133

The defendant’s submissions - paragraph 158

Determination – did the defendant breach his duty of care to the plaintiff? - paragraph 182

Causation - paragraph 199

Damages - paragraph 203

Treatment expenses - paragraph 204

Past economic loss - paragraph 206

Future economic loss - paragraph 209

The plaintiff’s claim for domestic care - paragraph 210

Contributory Negligence - paragraph 212

Orders - paragraph 214

Judgment

The Plaintiff’s claim

1. The plaintiff claims damages for personal injury suffered by him on 29 August 2017, when he was driving his motorcycle to work on the Central Coast Highway at Erina. At the intersection of Avoca Drive, the plaintiff’s claim is that he was stationary at a red light when a vehicle driven by the defendant failed to stop and struck his motorcycle from behind. The plaintiff has pleaded the defendant was negligent in so driving his motor vehicle.

2. The defendant admits to driving his vehicle and has not denied in his defence that his vehicle struck the plaintiff’s motorcycle from behind. Rather, the defendant’s case was that at the time immediately prior to the incident, the plaintiff was “lane filtering”, namely, riding his motorcycle between vehicles and in doing so darted in front of the defendant’s vehicle, not giving the defendant, who was at that time accelerating away from the lights, time to avoid colliding with the rear of the plaintiff’s motorcycle. The defendant thereby contends that the collision was caused by the actions of the plaintiff.

3. The defendant has further pleaded that, in the event the court finds that he was negligent, then the plaintiff was guilty of contributory negligence and any damages should be reduced accordingly.

Issues…