Lewis v Shimokawa

[2008] NSWDC 244

CITATION:	Lewis v Shimokawa [2008] NSWDC 244
HEARING DATE(S):	22, 23, 24 and 25 September 2008
JUDGMENT DATE:	14 November 2008
JURISDICTION:	District Court - Civil
JUDGMENT OF:	Levy SC DCJ
DECISION:	1. Verdict and judgment for the Plaintiff in the sum of $1,444,851. 2. Defendant to pay the Plaintiff’s costs.
CATCHWORDS:	NEGLIGENCE - motor vehicle collision – determination of disputed factual issues. - ALLEGATION OF FRAUD – allegation of fraud not proven – Defendant alleged Plaintiff’s claim was made fraudulently. - DAMAGES – assessment of multiple heads of damage.
LEGISLATION CITED:	Motor Accidents Compensation Act, 1999, s.124, s.128, s.134, s.136
CASES CITED:	Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 Briginshaw v Briginshaw (1938) 60 CLR 336 Leotta v Public Transport Commission of NSW (1976) 9 ALR 437 Manley v Alexander [2005] 80 ALJR 413 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Purkess v Crittenden (1965) 114 CLR 164 Watts v Rake (1960) 108 CLR 158
PARTIES:	Rebecca Lewis (Plaintiff) Shizunori Shimokawa (Defendant)
FILE NUMBER(S):	0470 of 2007
COUNSEL:	Mr A Lidden SC and Mr P Khandhar (Plaintiff) Mr A Renshaw (Defendant)
SOLICITORS:	Brydens Law Office (Plaintiff) Moray & Agnew (Defendant)

JUDGMENT

Introduction

1. The Plaintiff seeks damages in respect of injuries she claims to have sustained in a motor vehicle collision which occurred on 21 November 2003. The Defendant alleges that the Plaintiff was not in the motor vehicle at the time of the collision and consequentially alleges that the Plaintiff’s claim is fraudulent. In the alternative, the Defendant also alleges that the Plaintiff has exaggerated the extent of her injuries and disabilities and that she has exaggerated her claim for damages. The outcome of the litigation is therefore dependent upon the assessment of the credibility of the Plaintiff and the witnesses called to give evidence concerning the factual matters upon which the claim is based.

Issues for determination

2. The following issues arise for determination:

(a) Was the collision caused by the negligence of the Defendant;

(b) Was the Plaintiff seated in the motor vehicle in question as she alleges when it was struck from behind by the vehicle being driven by the Defendant;

(c) On the assumption the Plaintiff was injured in the collision in question as alleged:-

(i) what was the Plaintiff’s health history and state of health before the collision;

(ii) what were the Plaintiff’s injuries;

(iii) what treatment and medical investigations did the Plaintiff undergo;

(iv) has the Plaintiff taken reasonable steps to attempt mitigation of her damages;

(v) resolution of conflicting opinions from medical experts concerning the Plaintiff’s condition and prognosis where the parties have elected not to call oral evidence to clarify and explain such opinions in a significant claim for damages;

(d) The assessment of the following claimed heads of damage:

(i) Non-economic loss
(ii) Past loss of earnings
(iii) Fox -v- Wood
(iv) Future loss of earning capacity
(v) Past loss of employer funded superannuation benefits
(vi) Future loss of employer funded superannuation benefits