Homsi v Pasquale

[2017] NSWDC 371

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Homsi v Pasquale [2017] NSWDC 371
Hearing dates:	1, 2, 8, 13, 17 and 21 November 2017
Date of orders:	21 December 2017
Decision date:	21 December 2017
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Judgment for the plaintiff for $0. (2) Costs reserved with liberty to apply.
Catchwords:	TORT – personal injury – plaintiff a passenger in a stationary vehicle involved in a slow speed rear-end collision at traffic lights – breach of duty of care admitted – assessment of damages – claims for past and future home assistance and past and future out of pocket expenses - plaintiff consulted a general practitioner once but thereafter had no medical treatment – past and future out of pocket expenses agreed to be zero – causation - plaintiff previously involved in two more serious accidents – medical certificate on plaintiff’s claim form unsatisfactory – plaintiff’s medico-legal evidence inaccurate and deficient – occupational therapist’s report relied on medical certificate filled out by retired medical practitioner at plaintiff’s solicitor’s office after her claim form was completed - no allowance made for past or future home care – whether damages award of $0 could be made
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW), ss 83, 85A and 109 Uniform Civil Procedure Rules 2005 (NSW), r 7.29
Cases Cited:	Broxton v McLelland (No 2) [1997] EMLR 157 Cha v Oh (No. 21) (2009) 9 DCLR (NSW) 67 Dank v Nationwide News Pty Ltd [2016] NSWSC 295 Homsi v Nabulsi [2017] NSWDC 16 Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Spautz v Dempsey (Supreme Court of New South Wales, 29 April 1993) Teskey v Toronto Transit Commission, 2003 CanLII 12871 (ON SC)
Category:	Principal judgment
Parties:	Plaintiff: Souraya Homsi Defendant: Felli Pasquale
Representation:	Counsel: Plaintiff: Dr S C Thornton Defendant: Mr A J J Renshaw   Solicitors: Plaintiff: Drexler & Partners Litigation and Compensation Lawyers Defendant: Hall & Wilcox Lawyers
File Number(s):	2016/200013
Publication restriction:	None

Judgment

The plaintiff is involved in a low-speed motor vehicle accident

1. The plaintiff by statement of claim filed on 1 July 2016 seeks damages arising from a motor vehicle accident in Macquarie Street, Liverpool, on 28 May 2015. On the day in question the plaintiff was a passenger of a vehicle which was stopped at a red light when the defendant’s vehicle, travelling at low speed to stop behind the stationary vehicle in which the plaintiff was sitting, struck that vehicle’s bumper bar. There was no damage to the vehicle, according to the referral letter sent by the insurer to medico-legal experts (Exhibit 1, p. 6).

2. Breach of duty of care was initially admitted. However, in an Amended Defence, the defendant subsequently pleaded:

“2. In response to paragraphs 5, 6, 7 and 8 the defendant admits that the collision occurred, but does not admit that the plaintiff was a passenger in vehicle registered BX77WJ at the time of the collision.”

3. Although the plaintiff was cross-examined about whether…