District Court
New South Wales
Medium Neutral Citation: Kelly Rutland v Robert De Marco [2017] NSWDC 140 Hearing dates: 29 – 31 May 2017 Decision date: 09 June 2017 Jurisdiction: Civil Before: Mahony SC DCJ Decision: Verdict and judgment for the plaintiff. For Orders see [146]
Catchwords: Nervous shock; mitigation of damages. Legislation Cited: Civil Liability Act 2002
Civil Procedure Act 2005
Motor Accidents Compensation Act 1999Cases Cited: Allianz Australia Insurance Limited v Rutland [2015] NSWCA 328
Bellingen Shire Council v Colavon Pty Limited [2012] NSWCA 34
ECS Group (Australia) Pty Limited v Hobby [2014] NSWCA 193
Fazlic v Milingimby Community Inc [1982] HCA 3; 150 CLR 345
Kallouf v Middis [2008] NSWCA 61
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Nominal Defendant v Lane [2004] NSWCA 405
Sampco Pty Limited v Wurth [2015] NSWCA 117Category: Principal judgment Parties: Kelly Rutland (Plaintiff)
Robert De Marco (Defendant)Representation: Counsel:
Solicitors:
I Roberts SC with M Inglis (Plaintiff)
D Hanna (Defendant)
Commins & Hendricks
Hall & Wilcox Solictors
File Number(s): 12/286449 Publication restriction: Nil
Judgment
Introduction
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The plaintiff claims damages for psychological injury she suffered as a result of the death of her sister, Rebecca Rutland, in a motor vehicle accident in Wagga Wagga on 24 April 2009. It was not in dispute that the plaintiff suffered a recognised psychiatric illness, as required by s 31 of the Civil Liability Act 2002 (“CLA”). The trial proceeded by way of an assessment of damages, however, those damages did not include damages for non-economic loss as the degree of whole person impairment of the plaintiff as assessed by a Review Panel on 30 March 2016, was not greater than 10%. Thus, pursuant to s 131 of the Motor Accidents Compensation Act 1999 (“MACA”), no damages could be awarded for non-economic loss.
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It should be noted that the administration of the plaintiff’s claim, and in particular, the assessment of her whole person impairment, had taken a tortuous route. Following an MAS assessment by Dr Alan Jagar on 29 October 2013, the plaintiff had been assessed as having a whole person impairment of 14%. Following assessment by a Review Panel on 14 March 2014, that assessment was revoked and the plaintiff was assessed as having a WPI of less than 10%. The plaintiff appealed that assessment in the Supreme Court where she was successful in having the Review Panel Certificate set aside, and the matter referred to a new Review Panel for assessment. The defendant then appealed to the Court of Appeal, which appeal was dismissed on 20 October 2015 (see Allianz Australia Insurance Limited v Rutland [2015] NSWCA 328). A further Review Panel assessed the plaintiff’s WPI on 30 March 2016 as 6%.
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The plaintiff’s claim for damages was therefore confined to the following heads of damage:
Past economic loss
Future economic loss
Past treatment expenses
Future treatment expenses
Past care and assistance, and
Future paid assistance.
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There was no real issue between the…
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- Case
- [2017] NSWDC 140
- Decision Date
CaseChat Overview and Summary
The central legal issues that the court had to resolve were whether the plaintiff's nervous shock was a foreseeable consequence of the defendant's negligence and if it was a direct result of the accident. The court also needed to determine if the plaintiff had taken reasonable steps to mitigate her damages following the incident.
The court found that the plaintiff's nervous shock was a foreseeable consequence of the defendant's negligent driving and that it was a direct result of the accident. The plaintiff was awarded damages for her psychological injury. However, the court reduced the damages by 20% due to the plaintiff's failure to mitigate her damages by not seeking timely medical treatment. The court concluded that the plaintiff could have reasonably mitigated her damages by seeking medical attention sooner after the accident.
The court ordered that the defendant pay the plaintiff damages for her nervous shock, reduced by 20% for failure to mitigate, along with interest and costs as outlined in the judgment.
Orders
Orders of the court
Verdict and judgment for the plaintiff. For Orders see [146]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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