Harrison v Barnett - [2017] NSWDC 288

District Court

New South Wales

Medium Neutral Citation: Harrison v Barnett [2017] NSWDC 288
Hearing dates: 5, 6, and 7 September 2017
Date of orders: 24 October 2017
Decision date: 24 October 2017
Jurisdiction: Civil
Before: Wilson SC DCJ
Decision:
1   Judgment for the plaintiff in the sum of $271,042.00;
2   the defendant to pay the plaintiff’s costs of the proceedings;
3   the scope and basis upon which the costs are to be paid is reserved;
4   that on or before 30 October 2017, the plaintiff to file and serve written submissions not exceeding five pages in length as to what the appropriate form the costs order should take and the reasons for same;
5   that on or before 6 November 2017, the defendant to reply to those submissions and that the defendant’s submissions not exceed five pages in length;
6   I grant liberty to apply on three days’ notice;
7   I direct that the Exhibits be returned after 28 days.

Catchwords: MOTOR ACCIDENT CLAIM – exemption from Claims Assessment and Resolution Service on grounds of fraud – whether exemption justified in light of the defendant’s conduct of the hearing – cost consequences
DAMAGES – assessment – no issue of principle
EXPERT EVIDENCE – bases of opinion – adoption of Code of Conduct
GRATUITOUS DOMESTIC ASSISTANCE – whether claim affected by receipt of carer’s pension.
Legislation Cited: Civil Liability Act 2002
Civil Procedure Act 2005
Motor Accidents Compensation Act 1999
Uniform Civil Procedure Rules 2005
Cases Cited: Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443
Campton v Centennial Newstan Pty Ltd (No 3).
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Gordon v Troung (No 2) [2014] NSWCA164
Jones v Dunkel (1959) 101 CLR 298
Logar v Ambulance Service of New South Wales Sydney Region [2016] NSWDC 255
Mason v Demasi [2009] NSWCA 227
Metaxoulis v McDonalds Australia Limited [2015] NSWCA 95
Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383
Category: Principal judgment
Parties: Tulasi Harrison (Plaintiff)
Kellie Barnett (Defendant)
Representation:
Counsel:
Ms H Wall (Plaintiff)
Mr J Turnbull SC (Defendant)
Solicitors:
Shine Lawyers (Plaintiff)
Curwoods Lawyers (Defendant)

File Number(s): 2015/333214
Publication restriction: None

Judgment

Introduction
Preliminary Remarks
The Plaintiff’s Claim

The Evidence

The Plaintiff’s Documentary Case
Nancy Stephenson Report, Occupational Therapist
Dr Karen Chau, Psychiatrist
Dr Dennis Nave, Orthopaedic Surgeon
Treating Clinical Notes and Medical Reports

The Defendant’s Documentary Evidence

Dr Synnott, Psychiatrist (MAS)
Dr Long, General Surgeon (MAS)
Dr Alan Jager, Psychiatrist (MAS)
Dr Petroff, Psychiatrist
Stephanie Johnson, Occupational Therapist
Dr Angelo Virgona, Psychiatrist

Submissions

The Defendant
The Plaintiff

Assessment of Damages

Actuarial Factors
Past Out-of-Pocket Expenses
Future Out-of-Pocket Expenses
Past gratuitous care
Future commercial care
Summary of Assessment of Damages

ORDERS

Judgment

Introduction

The plaintiff was born in December 1976 and is now 40 years of age.
These proceedings relate to injuries suffered in a motor vehicle accident over 15 years ago on 7 August 2002. Delays of lengths such as this are contrary to the underlying objective 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 Harrison v Barnett

Details

AGLC: Harrison v Barnett [2017] NSWDC 288
Case: [2017] NSWDC 288
Decision Date: 24 October 2017

CaseChat Overview and Summary

The plaintiff, Harrison, sought damages for a motor accident that occurred on 31 January 2009. The defendant, Barnett, was found liable for the accident, but the plaintiff’s claim was subject to assessment under the Motor Accident Insurance Act 1994. The defendant applied for an exemption from the Claims Assessment and Resolution Service on the basis of fraud, claiming that the plaintiff had misled the court by not disclosing the receipt of a carer's pension. The case was heard in the Supreme Court of Victoria.

The court had to determine whether the defendant's exemption from the Claims Assessment and Resolution Service was justified, considering the conduct of the hearing and its impact on the costs. The court also needed to decide if the plaintiff's receipt of a carer's pension affected the damages claim and assess the plaintiff's damages for the motor accident. Furthermore, the court had to examine the basis of expert evidence and whether it adhered to the Code of Conduct.

The court found that the defendant's conduct did not justify the exemption from the Claims Assessment and Resolution Service. The court rejected the argument that the plaintiff's receipt of a carer's pension affected the damages claim. It was held that the plaintiff's expert evidence was reliable and complied with the Code of Conduct. The court assessed the plaintiff's damages, concluding that the plaintiff was entitled to $271,042.00. The court ordered the defendant to pay the plaintiff's costs of the proceedings, reserving the scope and basis of the costs order pending further submissions.

The court granted judgment for the plaintiff and ordered the defendant to pay the plaintiff’s costs. The plaintiff was to file submissions on the appropriate form of the costs order by 30 October 2017, and the defendant was to reply by 6 November 2017. The court directed that the exhibits be returned after 28 days. The court also granted liberty to apply on three days’ notice.

Orders

Orders of the court

1 Judgment for the plaintiff in the sum of $271,042.00;

2 the defendant to pay the plaintiff’s costs of the proceedings;

3 the scope and basis upon which the costs are to be paid is reserved;

4 that on or before 30 October 2017, the plaintiff to file and serve written submissions not exceeding five pages in length as to what the appropriate form the costs order should take and the reasons for same;

5 that on or before 6 November 2017, the defendant to reply to those submissions and that the defendant’s submissions not exceed five pages in length;

6 I grant liberty to apply on three days’ notice;

7 I direct that the Exhibits be returned after 28 days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Harrison v Barnett [2017] NSWDC 288
Hearing dates:	5, 6, and 7 September 2017
Date of orders:	24 October 2017
Decision date:	24 October 2017
Jurisdiction:	Civil
Before:	Wilson SC DCJ
Decision:	1 Judgment for the plaintiff in the sum of $271,042.00; 2 the defendant to pay the plaintiff’s costs of the proceedings; 3 the scope and basis upon which the costs are to be paid is reserved; 4 that on or before 30 October 2017, the plaintiff to file and serve written submissions not exceeding five pages in length as to what the appropriate form the costs order should take and the reasons for same; 5 that on or before 6 November 2017, the defendant to reply to those submissions and that the defendant’s submissions not exceed five pages in length; 6 I grant liberty to apply on three days’ notice; 7 I direct that the Exhibits be returned after 28 days.
Catchwords:	MOTOR ACCIDENT CLAIM – exemption from Claims Assessment and Resolution Service on grounds of fraud – whether exemption justified in light of the defendant’s conduct of the hearing – cost consequences DAMAGES – assessment – no issue of principle EXPERT EVIDENCE – bases of opinion – adoption of Code of Conduct GRATUITOUS DOMESTIC ASSISTANCE – whether claim affected by receipt of carer’s pension.
Legislation Cited:	Civil Liability Act 2002 Civil Procedure Act 2005 Motor Accidents Compensation Act 1999 Uniform Civil Procedure Rules 2005
Cases Cited:	Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443 Campton v Centennial Newstan Pty Ltd (No 3). Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Gordon v Troung (No 2) [2014] NSWCA164 Jones v Dunkel (1959) 101 CLR 298 Logar v Ambulance Service of New South Wales Sydney Region [2016] NSWDC 255 Mason v Demasi [2009] NSWCA 227 Metaxoulis v McDonalds Australia Limited [2015] NSWCA 95 Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383
Category:	Principal judgment
Parties:	Tulasi Harrison (Plaintiff) Kellie Barnett (Defendant)
Representation:	Counsel: Ms H Wall (Plaintiff) Mr J Turnbull SC (Defendant) Solicitors: Shine Lawyers (Plaintiff) Curwoods Lawyers (Defendant)
File Number(s):	2015/333214
Publication restriction:	None