Kaiser v Johnston

[2010] NSWDC 103

CITATION:	Kaiser v Johnston [2010] NSWDC 103
HEARING DATE(S):	23/02/2010-26/02/2010
JUDGMENT DATE:	11 June 2010
JURISDICTION:	District Court - Civil
JUDGMENT OF:	Sidis DCJ at 1
DECISION:	Verdict and judgment for the plaintiff in the sum of $291,609. The defendant is to pay the plaintiff’s costs of the proceedings. This order is suspended for a period of seven days to allow the parties to list the matter for further argument on this issue, if required. Exhibits G and H are returned. The remaining exhibits are to be retained for 28 days.
CATCHWORDS:	MOTOR VEHICLE ACCIDENT - Circumstances of the accident - Causation - Contributory negligence - Brain damaged plaintiff - Extent of residual impairment.
CASES CITED:	Bendix Mintex Pty Limited v Barnes (1997) 42 NSWLR 307 Wallaby Grip v Macleay Area Health Service (1998) 17 NSWCCR 355
TEXTS CITED:	Australian Road Rules 1999
PARTIES:	William Leslie Kaiser (Plaintiff) Paul Douglas Johnston (Defendant)
FILE NUMBER(S):	2009/332687
COUNSEL:	Mr A Stone (for the Plaintiff) Mr B Fitzsimmons (for the Defendant)
SOLICITORS:	Burke Elphick & Mead Lawyers (for the Plaintiff) Moray & Agnew Solicitors (for the Defendant)

JUDGMENT

1 William Leslie Kaiser was injured on 6 August 2007 when, as a pedestrian, he impacted with a vehicle driven by Paul Douglas Johnston. The accident occurred in the early hours of the morning, before sunrise, at the intersection of Walford and Walton Streets, Wallsend.

2 The plaintiff remembered nothing of the circumstances in which the accident occurred. The defendant did not see the plaintiff before the impact with his vehicle.

3 The issues were:

1 Whether there was negligence on the part of the defendant that was causative of the plaintiff’s injuries;

2 The contributory negligence, if any, of the plaintiff;

3 The nature and extent of the plaintiff’s injuries as a result of the accident;

4 The compensation, if any, to be awarded for those injuries in respect of non economic loss, medical expenses and requirements for past and future domestic care.

The circumstances in which the accident occurred

4 In the absence of any memory of the circumstances in which he was injured, the plaintiff was able only to give evidence of his regular practice.

5 He said that he routinely took a morning walk, starting at 5.30 am. In the 18 month period before the accident he followed the route that was shown on Exhibit E. This involved walking along the streets of Cardiff and included a walk to the west on the southern side of Walton Street towards its intersection with the south eastern corner of Walford Street. From there, his practice was to continue to walk to the north on Walford Street to Thomas Street.

6 The plaintiff said there was no constructed footpath on the southern side of Walton Street and he therefore walked on the road, close to the gutter. At the corner of Walton and Walford Streets his practice was to step on to the grass and walk towards the street sign to check for traffic…