(2) The parties are to bring in agreed short minutes of order within seven days reflecting the Court’s reasons for decision.
(3) The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.
(4) The parties have leave to make an application within 14 days to vary the order as to costs in (3) above.
(5) Liberty to apply to the Associate to Dicker SC DCJ to relist the matter on two business days’ notice.
(6) Exhibits are to be returned after 28 days of final orders being made.
Catchwords:
TORTS – negligence - motor vehicle accident -liability admitted - assessment of damages -substantial inconsistency in the medico-legal reports - pre-existing conditions including multiple sclerosis and psychological conditions - whether plaintiff had any, or any significant, loss of salary or earning capacity
Counsel: L Morgan (Plaintiff) D Ronzani (Defendannt)
Solicitors: Beilby Poulden Costello (Plaintiff) Barry Nilsson Lawyers (Defendant)
File Number(s):
2022/00259352
Publication restriction:
No
JUDGMENT
In these proceedings, the plaintiff, Ms Ramona Geraci, sued the defendant, Mr Joseff Kechtban, for damages in the tort of negligence for injuries allegedly sustained by the plaintiff in a motor vehicle accident which occurred on 31 July 2016.
The plaintiff was a front seat passenger in a sedan which was being driven by her then partner along The Horsley Drive at Fairfield in Sydney. The car in which she was sitting was struck on the left hand side near her by the defendant’s vehicle which was exiting from a service station onto The Horsley Drive.
Liability is not…
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.
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Details
AGLC
Geraci v Ketchban [2024] NSWDC 70
Case
[2024] NSWDC 70
Decision Date
CaseChat Overview and Summary
The case of Geraci v Ketchban involved a motor vehicle accident where the defendant admitted liability. The plaintiff sought damages for injuries sustained in the accident, which included pre-existing conditions such as multiple sclerosis and psychological conditions. The dispute centred on the assessment of damages, particularly the extent of any loss of salary or earning capacity. The matter was heard and determined in the District Court of New South Wales.
The primary legal issue before the court was the extent to which the plaintiff's pre-existing conditions and the injuries sustained in the accident had impacted her earning capacity. The court had to consider the medico-legal reports which were substantially inconsistent in their assessments. The court also needed to determine if the plaintiff had any significant loss of earning capacity as a result of the accident.
The court found that the plaintiff had suffered from significant injuries which exacerbated her pre-existing conditions. The inconsistencies in the reports were addressed by considering the weight of evidence and the expert opinions. The court concluded that the plaintiff had experienced a notable loss of earning capacity as a result of the accident, despite her pre-existing conditions. The court awarded damages to the plaintiff, reflecting the impact of the accident on her ability to earn income.
The court ordered judgment for the plaintiff, with specific directions for the parties to prepare agreed short minutes of order, and to return exhibits. The defendant was ordered to pay the plaintiff’s costs. The parties were granted leave to apply to vary the costs order and to relist the matter if necessary.
Orders
Orders of the court
(1) Judgment for the plaintiff.
(2) The parties are to bring in agreed short minutes of order within seven days reflecting the Court’s reasons for decision.
(3) The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.
(4) The parties have leave to make an application within 14 days to vary the order as to costs in (3) above.
(5) Liberty to apply to the Associate to Dicker SC DCJ to relist the matter on two business days’ notice.
(6) Exhibits are to be returned after 28 days of final orders being made.