El-Hassan v Stewart - [2019] NSWDC 480

District Court

New South Wales

Medium Neutral Citation: El-Hassan v Stewart [2019] NSWDC 480
Hearing dates: 31 July 2019; 2, 5, 6, 7 and 14 August 2019
Date of orders: 10 September 2019
Decision date: 10 September 2019
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Judgment for the plaintiff for the sum of $18,094.27.
(2) Costs reserved with liberty to apply.
(3) Exhibits retained for 28 days.

Catchwords: TORT – personal injury – Motor Accidents Compensation Act 1999 (NSW) – contributory negligence – assessment of damages – conflicting medical opinions – absence of tax returns – whether attendant care services claim met the threshold – no issue of principle
Legislation Cited: Civil Liability Act 2002 (NSW), s 5R
Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9
Motor Accidents Compensation Act 1999 (NSW), ss 126 , 138 and 141B
Cases Cited: Amoud v Al Batat (2009) 54 MVR 167
Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443
ECS Group (Australia) Pty Ltd v Hobby [2014] NSWCA 193
Falco v Aiyaz; Falco v Falzon (2015) 71 MVR 454
Giorginis v Kastrati [1988] 49 SASR 371
Gordon v Truong; Truong v Gordon [2014] NSWCA 97
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Mitchell v Cullingral Pty Ltd [2012] NSWCA 389
State of NSW v Moss [2000] NSWCA 133
The Nominal Defendant v Kostic [2007] NSWCA 14
Volzhenin v Haile 2007 BCCA 317
Whalan v Kogarah Municipal Council [2007] NSWCA 5
Category: Principal judgment
Parties: Plaintiff: Fadi El-Hassan
Defendant: Christine Stewart
Representation:
Counsel:
Plaintiff: Mr M Sciglitano
Defendant: Mr M Nesbeth
Solicitors:
Plaintiff: Brydens Lawyers
Defendant: McCabe Curwood

File Number(s): 2019/3798
Publication restriction: None

Judgment

The plaintiff’s claim for damages

The plaintiff, by statement of claim filed on 4 January 2019, brings proceedings for damages for personal injury after he was struck by a vehicle driven by the defendant along South Dowling Street, Eastlakes, New South Wales shortly after 8:00pm on 7 July 2015.
The circumstances of the accident were follows. At about 8:00pm, the plaintiff had been driving along a stretch of the M1 motorway in lane 3. When he moved to lane 2, he was “sideswiped” by another vehicle travelling in lane 3. Both cars pulled to the left side of the road to the emergency lane to park.
The plaintiff opened the door to his vehicle onto the roadway. He then walked around the open door and towards the other car. He was standing with his left side to his car, which meant he had his back to the traffic. He did not look at the oncoming traffic (which was behind him), He said he was extremely angry and shouting obscenities as well as gesticulating at the other driver. The next thing he knew, he had been hit on the buttock from behind and was knocked to the ground.
The defendant was travelling in lane 1 along the M1 motorway at the sign posted speed…

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 El-Hassan v Stewart

Details

AGLC: El-Hassan v Stewart [2019] NSWDC 480
Case: [2019] NSWDC 480
Decision Date: 10 September 2019

CaseChat Overview and Summary

The plaintiff, El-Hassan, sought compensation from the defendant, Stewart, following a motor vehicle accident that resulted in personal injuries. The matter was heard in the District Court of New South Wales, where the plaintiff argued for damages under the Motor Accidents Compensation Act 1999 (NSW), contending that the defendant was negligent and that his injuries were exacerbated by contributory negligence. The plaintiff also claimed for attendant care services, which the defendant contested, particularly in light of the absence of tax returns to substantiate the claimed expenses.

The court was required to determine several legal issues, including the extent to which the plaintiff's contributory negligence impacted his entitlement to damages, the appropriate amount of damages to be awarded, and whether the plaintiff had met the threshold for claiming attendant care services. Additionally, the court had to consider conflicting medical opinions regarding the severity and impact of the plaintiff's injuries.

In its judgment, the court found that the plaintiff was entitled to compensation for his injuries but reduced the damages by 25% due to contributory negligence. The court accepted the plaintiff's medical evidence over that of the defendant, finding that the injuries were more severe than the defendant's experts had suggested. Regarding the attendant care services, the court found that the plaintiff had not met the required threshold, largely due to the absence of tax returns. The court calculated the damages based on the evidence presented, including the plaintiff's loss of earnings and future medical expenses, arriving at a total sum of $18,094.27. The court reserved the issue of costs, allowing for an application if necessary, and ordered that the exhibits be retained for 28 days.

Orders

Orders of the court

(1) Judgment for the plaintiff for the sum of $18,094.27.

(2) Costs reserved with liberty to apply.

(3) Exhibits retained for 28 days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	El-Hassan v Stewart [2019] NSWDC 480
Hearing dates:	31 July 2019; 2, 5, 6, 7 and 14 August 2019
Date of orders:	10 September 2019
Decision date:	10 September 2019
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Judgment for the plaintiff for the sum of $18,094.27. (2) Costs reserved with liberty to apply. (3) Exhibits retained for 28 days.
Catchwords:	TORT – personal injury – Motor Accidents Compensation Act 1999 (NSW) – contributory negligence – assessment of damages – conflicting medical opinions – absence of tax returns – whether attendant care services claim met the threshold – no issue of principle
Legislation Cited:	Civil Liability Act 2002 (NSW), s 5R Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9 Motor Accidents Compensation Act 1999 (NSW), ss 126 , 138 and 141B
Cases Cited:	Amoud v Al Batat (2009) 54 MVR 167 Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443 ECS Group (Australia) Pty Ltd v Hobby [2014] NSWCA 193 Falco v Aiyaz; Falco v Falzon (2015) 71 MVR 454 Giorginis v Kastrati [1988] 49 SASR 371 Gordon v Truong; Truong v Gordon [2014] NSWCA 97 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 State of NSW v Moss [2000] NSWCA 133 The Nominal Defendant v Kostic [2007] NSWCA 14 Volzhenin v Haile 2007 BCCA 317 Whalan v Kogarah Municipal Council [2007] NSWCA 5
Category:	Principal judgment
Parties:	Plaintiff: Fadi El-Hassan Defendant: Christine Stewart
Representation:	Counsel: Plaintiff: Mr M Sciglitano Defendant: Mr M Nesbeth Solicitors: Plaintiff: Brydens Lawyers Defendant: McCabe Curwood
File Number(s):	2019/3798
Publication restriction:	None