Mitrovic v Venuto
[2015] NSWSC 384
•08 April 2015
Supreme Court
New South Wales
Medium Neutral Citation: Mitrovic v Venuto [2015] NSWSC 384 Hearing dates: 12 December 2014 Date of orders: 12 December 2014 Decision date: 08 April 2015 Jurisdiction: Common Law Before: Wilson J Decision: Settlement approved
Catchwords: CIVIL LAW – approval of settlement – s76 Civil Procedure Act 2005 (NSW) Legislation Cited: Civil Procedure Act 2005 (NSW)
Motor Accidents Compensation Act 1999 (NSW)Cases Cited: Fairhurst v Fairhurst [2012] NSWSC 388 Category: Procedural and other rulings Parties: Jovanka Mitrovic by her tutor Svetozar Mitrovic (Plaintiff)
Julie Venuto (Defendant)Representation: Counsel: Mr R D Cullen (Plaintiff)
Solicitors: Paul A. Curtis & Co (Plaintiff)
Ms N Tut (Defendant)
Hunt & Hunt (Defendant)
File Number(s): 2011/164347
Judgment
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On 19 May 2011 the plaintiff, by her tutor Svetozar Mitrovic, filed a statement of claim seeking damages pursuant to the Motor Accidents Compensation Act 1999 (NSW). The incident giving rise to the claim occurred on 13 June 2006 when the vehicle driven by the defendant collided with the plaintiff at a pedestrian crossing at Chester Hill.
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The defendant admitted the collision occurred as a result of her negligence, but disputed the degree of the injuries and impairments pleaded by the plaintiff. A number of medical reports were obtained and tendered at the proceedings.
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The parties ultimately reached an agreement and the matter came before me for settlement approval pursuant to s76 Civil Procedure Act 2005. On 12 December 2014 I approved the settlement in accordance with the signed consent judgment and short minutes of order.
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In making that order, having considered the evidence before the court, I reached the conclusion that the proposed compromise was beneficial to the interests of the plaintiff: Fairhurst v Fairhurst [2012] NSWSC 388.
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After the collision the plaintiff was admitted to Westmead hospital with injuries to her head and neck, left shoulder with fracture and displacement of the humerus, a fractured left lateral tibial plateau, and some bruises and abrasions. Following the discharge on 7 July 2006 the plaintiff has required ongoing assistance from family members with day to day activities. Damages were sought for such assistance at the prescribed rates pursuant to s128 of the Motor Accidents Compensation Act 1999. The plaintiff also claimed loss of earning capacity.
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The main dispute in the proceedings, and the main issue in consideration of the settlement approval, relates to the alleged decline in the plaintiff’s psychological and cognitive functioning.
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The plaintiff’s action pleaded deterioration of cognitive functioning and onset of dementia and post traumatic disorder as a direct consequence of the collision. The plaintiff was examined by a number of medical practitioners and a considerable volume of medical material has been placed before the court. It is evident from that material, as well as from affidavits read on behalf of the plaintiff, that there is a significant medical dispute as to the precise nature of the plaintiff’s condition and, more particularly, the causal link between the condition and the collision.
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On the evidence before the court, it would be difficult to come to any positive finding as to the extent to which the plaintiff’s current condition is attributable to the motor vehicle collision.
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The same conclusion was reached by the plaintiff’s legal representatives, leading to negotiations between the parties and the ultimate settlement in the terms proposed to the Court. The application for approval is made with full understanding of the evidentiary difficulties, as outlined in the affidavit of the plaintiff’s tutor, Mr Svetozar Mitrovic, sworn on 5 December 2014.
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In light of the dichotomy of the medical opinion, there is no realistic prospect that the plaintiff would have been awarded a higher amount of damages following a full hearing. I am satisfied that a settlement in the proposed terms is in the plaintiff’s best interests.
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Accordingly, pursuant to s76 of the Civil Procedure Act 2005 I approve the settlement in accordance with the signed Consent Judgment and make orders 1 to 6 of the Short Minutes of Order.
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Decision last updated: 08 April 2015
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