Hardwick v Jankowski

[2019] NSWDC 90

District Court

New South Wales

Medium Neutral Citation:	Hardwick v Jankowski [2019] NSWDC 90
Hearing dates:	20, 21 March 2019
Date of orders:	01 April 2019
Decision date:	01 April 2019
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	Judgment for the plaintiff with the parties to make submissions as to final orders.
Catchwords:	Motor accidents – competing accounts of collision occurring – whether breach of duty of care – whether personal injury caused by acceleration of abnormal back pathology.   Damages – whether future harm caused be pre-existing injury or defendant’s negligence – whether defendant causes evidentiary onus – future economic loss – future care – future out-of-pocket expenses – whether damages for each claimed head of damage should be discounted by possibility of future harm is caused by pre-existing injury.
Legislation Cited:	Civil Liability Act 2002 (NSW) Motor Accident Compensation Act 1999 (NSW)
Cases Cited:	Amaca Pty Ltd v Latz [2018] HCA 22 Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 CSR Ltd v Eddy (2005) 226 CLR 1 DC v State of New South Wales [2016] NSWCA 198 Graham v Baker (1961) 106 CLR 340 IAG t/as NRMA Insurance Ltd v Helou [2008] NSWCA 240 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Miller v Galderisi [2009] NSWCA 353 Monaghan Surveyors Pty Ltd v Stratford Glen-Avon Pty Ltd [2012] NSWCA 94 New South Wales v Fahy (2006) Aust Torts Rep 81-865 Penrith City Council v Parks [2004] NSWCA 201 Purkess v Crittenden (1965) 114 CLR 164 Seltsam v Ghaleb [2005] NSWCA 208 State of NSW v Burton (2006) Aust Torts Rep 81-826 Vincent v Woolworths Ltd [2015] NSWSC 435 Watts v Rake (1960) 108 CLR 158
Category:	Principal judgment
Parties:	Thomas Peter Hardwick (Plaintiff) James Jankowski (Defendant)
Representation:	Counsel: B Tzatzagos (Plaintiff) D Hanna (Defendant) Solicitors: Brydens Lawyers (Plaintiff) Moray & Agnew (Defendant)
File Number(s):	2018/52201
Publication restriction:	Nil

Judgment

NATURE OF THE CASE

1. On 11 January 2017 at about 4:25 PM, the plaintiff, Mr Thomas Hardwick, who at the time was 19 year old apprentice motor mechanic, was driving home from work in a northerly direction along Tivoli Esplanade, in Como in the southern suburbs of Sydney. He was driving a two - door red Toyota Coupe. At about that time, the defendant, Mr James Jankowski, was driving in a southerly direction along Tivoli Esplanade. Mr Jankowski was driving a white Mitsubishi Ute. At the front of the Mitsubishi Ute was a bull bar.

2. Mr Jankowski had been driving from Tweed Heads. Mr Jankowski’s intended destination was a visit to his sister in Ortona Parade. From his direction, Mr Jankowski had to make a right turn into Ortona Parade, across Tivoli Esplanade.

3. Mr Hardwick’s car collided with Mr Jankowski’s car, in circumstances that are in dispute. In this proceeding, Mr Hardwick claims damages for personal injury sustained in the accident. He asserts that the collision was the result of Mr Jankowski’s negligence in making a right-hand turn into Ortona Parade from Tivoli Esplanade. In his statement…