Jasmin Fazlic v Jonathon Keily

[2013] ACTSC 144

JASMIN FAZLIC v JONATHON KEILY
 [2013] ACTSC 144 (30 July 2013)

DAMAGES – personal injury – motor vehicle collision – injuries to neck and lower back – previously asymptomatic degenerative disease in lumbar spine – chronic pain disorder – adjustment disorder with anxiety and depression – whether subsequent assault was causally independent – substantial impairment of earning capacity – appropriate reduction for vicissitudes

Cairns v Woolworths Limited [2005] ACTSC 95
Fox v Wood (1981) 148 CLR 438
State Government Insurance Commission v Oakley (1990) Aust Torts Reports 81-003

No. SC 979 of 2008

Judge:             Master Harper             
Supreme Court of the ACT

Date:              30 July 2013

IN THE SUPREME COURT OF THE     )
  )          No. SC 979 of 2008
AUSTRALIAN CAPITAL TERRITORY           )          

BETWEEN:  JASMIN FAZLIC

Plaintiff         

AND:  JONATHON KEILY

Defendant

ORDER

Judge:  Master Harper
Date:  30 July 2013
Place:  Canberra

THE COURT ORDERS THAT:

1. the proceeding be adjourned to a date to be fixed, for submissions as to past loss of earnings, tax on workers’ compensation and costs.

1. The plaintiff in this action claims damages for personal injury arising out of a motor vehicle collision.  The defendant has admitted that the collision was caused by his negligence.

1. The collision occurred at about 8.00 am on Wednesday 28 March 2007.  The plaintiff and his then wife were travelling to work.  The plaintiff was driving and his wife was in the front passenger seat.  They were proceeding north on the Tuggeranong Parkway in heavy traffic.  The car in front of the plaintiff stopped suddenly.  The plaintiff was able to bring his car to a stop without colliding with the car in front, but was struck heavily from behind by the defendant’s car.  The plaintiff’s evidence was that it was a very strong impact, like an explosion.  The plaintiff felt immediate pain in his low back, and was very shaken up by the impact, taking some five or ten minutes to get out of the car.  Police and ambulance officers attended the scene.  The plaintiff declined an offer to be taken to hospital by ambulance.  His car remained driveable, and he was able to continue to work.  Although driveable, the car was damaged beyond economic repair and was written off by the plaintiff’s comprehensive insurer.  He was paid the sum insured, to his recollection $7,500.00.

1. The plaintiff’s evidence about these matters was not challenged, and I accept it.

The plaintiff

1. The plaintiff is almost fifty years of age.  He was born in Bosnia in September 1963.  After school he spent some fifteen months in national service.  He then qualified as a machinist, and worked in that capacity in a government factory for about eight years.  At the end of that time he qualified as a primary schoolteacher, and worked as a teacher from 1992 to 1994.  During 1993 he married his first wife.  Following the breakup of the former Yugoslavia, there was civil war in Bosnia in the early 1990s.  The city where the plaintiff and his wife were living was not occupied…