Fitzsimmons v O'Donnell

[2011] NSWDC 197

District Court

New South Wales

Medium Neutral Citation:	Fitzsimmons v O'Donnell [2011] NSWDC 197
Hearing dates:	7/12/11, 8/12/11
Decision date:	08 December 2011
Jurisdiction:	Civil
Before:	Elkaim SC DCJ
Decision:	See paragraph 46
Catchwords:	Personal injury
Legislation Cited:	Motor Accident Compensation Act 1999 Social Security Act 1991 (Cth)
Cases Cited:	Penrith City Council v Parkes [2004] NSWCA 201 Rabay v Bristow [2005] NSWCA 199
Category:	Principal judgment
Parties:	Kylie Fitzsimmons (Plaintiff) Des O'Donnell (Defendant)
Representation:	A Canceri (Plaintiff) J Gracie (Defendant) CMC Lawyers (Plaintiff) Rankin Nathan Lawyers (Defendant)
File Number(s):	2010/00392478
Publication restriction:	No

Judgment

1. On 9 August 2008 the train from Kiama to Wollongong did not run. It was replaced by a bus service. The plaintiff and her daughter thus found themselves on a bus on their journey to Wollongong Railway Station. As the bus approached the station, but before the scheduled stop, the driver met the request of a friend who he allowed to disembark at his convenience. The passengers on the bus, thinking that they had reached their destination, stood up, only to be met by the sudden departure of the bus. The plaintiff was thrown backward striking her lower left side on a seat and then falling to the ground.

1. The bus driver's breach of duty of care to the plaintiff is admitted. The plaintiff now seeks damages arising from the injuries she suffered.

1. The plaintiff's claim is governed by the Motor Accident Compensation Act 1999 ("the MACA"). The plaintiff does not meet the threshold set by Section 131. She is therefore not entitled to non-economic loss. The plaintiff seeks damages under the following heads: past and future medical expenses, past and future economic loss and past and future domestic assistance.

1. The defendant challenges the extent of every claim under the above heads.

1. The plaintiff's claim is extensive, totalling some $450,000. The evidence did not come close to justifying this amount. This is not to say, however, that the plaintiff was not an honest or credible witness. It is merely an observation arising from the size of the claim.

1. I did think the plaintiff did her best to give evidence honestly. Often it was this very frankness that blunted the expansion of her claim.

1. When the accident occurred the plaintiff was receiving a Disability and Support pension. This arose from a mental condition, which manifested as bouts of severe depression and continuing anxiety. The Statement of Particulars lists mental conditions as consequences of the accident. These allegations were appropriately not pressed.

1. In addition to her depression, but perhaps related or causative of it, the plaintiff has a history of drug and alcohol abuse. She seems to have surmounted this abuse and no longer smokes cannabis or drinks alcohol.

1. The plaintiff was born in 1968. She left school in Year 10. Almost her entire work history is as a cleaner at various establishments. I say almost because from 2006 she distributed pamphlets for a cash sum of $100 per week. This was actually a family enterprise…