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 141BCases 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 5Category: Principal judgment Parties: Plaintiff: Fadi El-Hassan
Defendant: Christine StewartRepresentation: Counsel:
Solicitors:
Plaintiff: Mr M Sciglitano
Defendant: Mr M Nesbeth
Plaintiff: Brydens Lawyers
Defendant: McCabe Curwood
File Number(s): 2019/3798 Publication restriction: None
Judgment
The plaintiff’s claim for damages
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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.
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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.
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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.
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The defendant was travelling in lane 1 along the M1 motorway at the sign posted speed…
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- AGLC
- El-Hassan v Stewart [2019] NSWDC 480
- Case
- [2019] NSWDC 480
- Decision Date
CaseChat Overview and Summary
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
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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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