Glavocevic v Issa - [2022] NSWDC 202

District Court

New South Wales

Medium Neutral Citation: Glavocevic v Issa [2022] NSWDC 202
Hearing dates: 1, 2 June 2022
Date of orders: 10 June 2022
Decision date: 10 June 2022
Jurisdiction: Civil
Before: Russell SC DCJ
Decision:
(1)   Judgment for the plaintiff against the defendant for $831,502.31.
(2)   Order the defendant to pay the plaintiff’s costs.
(3)   If either party wishes to seek a different costs order, arising out of an Offer of Compromise or some other offer, grant leave to approach my Associate by email within 7 days to relist the matter for further argument or to have the matter dealt with on the papers.

Catchwords:
DAMAGES - whether right foot injury causally related to the accident – residual earning capacity – evidentiary burden on the defendant to provide evidence of the plaintiff’s ability to obtain and retain jobs – economic loss – past out-of-pocket expenses – future medical treatment – past care – future commercial care – Fox v Wood

Legislation Cited:
Motor Accidents Compensation Act 1999 (NSW)

Cases Cited:
Fox v Wood [1981] HCA 41
Mead v Kearney [2012] NSWCA 215
Nominal Defendant v Lavaja [2011] NSWCA 121
Smith v Alone [2017] NSWCA 286
South Western Sydney Local Health District v Sorbello [2017] NSWCA 201

Category: Principal judgment
Parties: Nevenko Glavocevic (Plaintiff)
Mohammad Issa (Defendant)
Representation:
Counsel:
N Ghabar (Plaintiff)
J Turnbull SC (Defendant)
Solicitors:
Taylor & Scott (Plaintiff)
Holman Webb (Defendant)

File Number(s): 2021/328636

Judgment

Introduction

This case concerns the assessment of damages in relation to a motor vehicle accident which occurred on 30 November 2017. Liability for the collision was admitted by the defendant in his Defence. Quantification of damages is governed by the Motor Accidents Compensation Act 1999 (NSW) (MAC Act).
The only witness to give oral evidence was the plaintiff himself. Both parties tendered documents, which were largely medical reports. No doctor was called to give oral evidence.
The plaintiff Mr Nevenko Glavocevic was a very impressive witness, a matter properly conceded by senior counsel for the defendant in final submissions. English is his third language (after Croation and German) but he understood the questions asked of him and appeared to me to be both conscientious and frank in the way in which he gave his answers.
I unreservedly accept Mr Glavocevic as a witness of truth. I also accept as truthful and accurate the histories he has given to doctors from time to time. This is because all of the medical reports were admitted for all purposes and because (understandably) there was no challenge to the accuracy of those histories.
Mr Glavocevic presented as a stoic individual who is highly motivated to keep working, in spite of the injuries suffered in the accident. Again, this was a matter properly conceded by senior counsel for the defendant.
The plaintiff suffered a broken right tibia and a lower back injury. Both of these injuries were conceded by the defendant. One important medical issue in the case was whether or not a condition of…

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 Glavocevic v Issa

Details

AGLC: Glavocevic v Issa [2022] NSWDC 202
Case: [2022] NSWDC 202
Decision Date: 10 June 2022

CaseChat Overview and Summary

In the case of Glavocevic v Issa, the plaintiff sought compensation for injuries sustained in a motor vehicle accident. The defendant was found liable for the accident. The plaintiff argued that the injuries sustained in the accident had resulted in significant financial losses, including past and future medical expenses, loss of income, and diminished earning capacity. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the right foot injury sustained by the plaintiff was causally related to the accident. The court also had to determine the extent of the plaintiff’s residual earning capacity and the evidentiary burden on the defendant to provide evidence of the plaintiff’s ability to obtain and retain jobs. Additionally, the court considered the appropriate assessment of economic loss, including past out-of-pocket expenses, future medical treatment, past care, and future commercial care.

The court found that the right foot injury sustained by the plaintiff was causally related to the accident. The plaintiff had successfully discharged the evidentiary burden to prove the extent of the injury and its impact on their residual earning capacity. The court held that the defendant failed to provide sufficient evidence to rebut the plaintiff's claims. The court assessed the plaintiff’s economic loss by considering past and future medical expenses, past out-of-pocket expenses, loss of income, and diminished earning capacity. The court awarded the plaintiff compensation in the amount of $831,502.31, along with an order for the defendant to pay the plaintiff's costs. If either party wished to seek a different costs order, they were granted leave to approach the Associate by email within 7 days to relist the matter for further argument or to have the matter dealt with on the papers.

Orders

Orders of the court

(1) Judgment for the plaintiff against the defendant for $831,502.31.

(2) Order the defendant to pay the plaintiff’s costs.

(3) If either party wishes to seek a different costs order, arising out of an Offer of Compromise or some other offer, grant leave to approach my Associate by email within 7 days to relist the matter for further argument or to have the matter dealt with on the papers.

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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Medium Neutral Citation:	Glavocevic v Issa [2022] NSWDC 202
Hearing dates:	1, 2 June 2022
Date of orders:	10 June 2022
Decision date:	10 June 2022
Jurisdiction:	Civil
Before:	Russell SC DCJ
Decision:	(1) Judgment for the plaintiff against the defendant for $831,502.31. (2) Order the defendant to pay the plaintiff’s costs. (3) If either party wishes to seek a different costs order, arising out of an Offer of Compromise or some other offer, grant leave to approach my Associate by email within 7 days to relist the matter for further argument or to have the matter dealt with on the papers.
Catchwords:	DAMAGES - whether right foot injury causally related to the accident – residual earning capacity – evidentiary burden on the defendant to provide evidence of the plaintiff’s ability to obtain and retain jobs – economic loss – past out-of-pocket expenses – future medical treatment – past care – future commercial care – Fox v Wood
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW)
Cases Cited:	Fox v Wood [1981] HCA 41 Mead v Kearney [2012] NSWCA 215 Nominal Defendant v Lavaja [2011] NSWCA 121 Smith v Alone [2017] NSWCA 286 South Western Sydney Local Health District v Sorbello [2017] NSWCA 201
Category:	Principal judgment
Parties:	Nevenko Glavocevic (Plaintiff) Mohammad Issa (Defendant)
Representation:	Counsel: N Ghabar (Plaintiff) J Turnbull SC (Defendant) Solicitors: Taylor & Scott (Plaintiff) Holman Webb (Defendant)
File Number(s):	2021/328636