Miszkurka v Kidd

[2017] NSWDC 177

District Court

New South Wales

Medium Neutral Citation:	Miszkurka v Kidd [2017] NSWDC 177
Hearing dates:	14 and 15 June 2017
Date of orders:	07 July 2017
Decision date:	07 July 2017
Jurisdiction:	Civil
Before:	Wilson SC DCJ
Decision:	1. Judgment for the plaintiff in the sum of $398,517.00; 2. The defendant to pay the plaintiff’s costs; 3. Liberty to apply within 14 days to vary the cost order, if necessary; 4. Exhibits to be returned forthwith.
Catchwords:	MOTOR VEHICLE ACCIDENT – ASSESSMENT OF DAMAGES
Cases Cited:	Metaxoulis v McDonalds Australia Limited [2015] NSWCA 95 (13 April 2015) Sampco Pty Limited v Wurth [2015] NSWCA 117
Category:	Principal judgment
Parties:	Waldemar Miszkurka (Plaintiff) Alexander Thomas Kidd (Defendant)
Representation:	Counsel: Mr J Turnbull SC with Mr M Sciglitano (Plaintiff) Mr A Renshaw (Defendant)   Solicitors: Mr L Hagipantelis, Brydens Compensation Lawyers (Plaintiff) Mr P Hunt, Curwoods Lawyers (Defendant)
File Number(s):	2013/147269
Publication restriction:	None

Judgment

Introduction

The Dispute

Evidence of the Plaintiff

Mariola Solis

The Medical Evidence

The Plaintiff’s Medical Evidence

Defendant’s Medical Evidence

Assessment of Damages

Non Economic Loss

Past Out of Pocket Expenses

Future Out of Pocket Expenses

Past Economic Loss

Future Economic Loss

Past Domestic Assistance

Future Domestic Assistance

Summary of Assessment of Damages

ORDERS

Judgment

introduction

1. The plaintiff brings a claim for damages in respect of personal injuries suffered in a motor vehicle accident which occurred on 2 March 2008 at approximately 6.15pm.

2. There was no issue about the defendant’s liability to the plaintiff and the matter came before the Court for the assessment of damages.

3. Relying upon a Third Further Amended Statement of Particulars filed 9 June 2017, the plaintiff claimed damages under the following heads of damage:

1. non-economic loss;

2. past treatment expenses;

3. future treatment expenses;

4. past economic loss;

5. past loss of superannuation;

6. future economic loss;

7. future loss of superannuation;

8. past domestic assistance;

9. future domestic assistance.

4. The only item agreed between the parties was past out of pocket expenses, in the sum of $2,017.00.

The Dispute

5. The principal basis for the dispute between the parties related to the plaintiff’s pre-accident medical condition and earning capacity.

6. There were several pre-accident injuries which are detailed below. At the time of the subject accident, the plaintiff was in receipt of a disability and support pension and had been for about six years.

7. Accordingly, the questions for determination include:

1. whether the plaintiff was injured as a consequence of the subject accident;

2. whether those injuries gave rise to ongoing disabilities;

3. the plaintiff’s earning capacity at the time of the subject accident;

4. whether the plaintiff’s earning capacity was affected by the subject accident which involves consideration of:

1. whether there is a physical incapacity caused by the accident;

2. whether, on the balance of probabilities, that incapacity is likely to be productive of economic loss;

3. the value to be ascribed to that loss of capacity;

4. whether the plaintiff has a reasonable need for domestic assistance arising from the subject accident;

5. if so, the extent to which that should be discounted by reason of pre-existing conditions.