Nievas v Mohammed

[2017] NSWDC 168

District Court

New South Wales

Medium Neutral Citation:	Nievas v Mohammed [2017] NSWDC 168
Hearing dates:	1, 2 and 5 June 2017
Date of orders:	29 June 2017
Decision date:	29 June 2017
Jurisdiction:	Civil
Before:	Wilson SC DCJ
Decision:	1. Judgment for the plaintiff in the sum of $89,760.12. 2. The defendant to pay the plaintiff’s costs of the proceedings. 3. That the parties have leave to approach the Court within 14 days to vary the order in respect of costs, if necessary. 4. That the Exhibits be returned.
Catchwords:	MOTOR VEHICLE ACCIDENT – CONTRIBUTORY NEGLIGENCE – ASSESSMENT OF DAMAGES
Legislation Cited:	Civil Liability Act 2002 Motor Accidents Compensation Act 1999
Cases Cited:	Sibley v Kais [1967] 118 CLR 424 Stocks v Baldwin (1996) 24 MVR 416 Trompp v Liddle (1941) 41 SR (NSW) 108
Category:	Principal judgment
Parties:	Omar Nievas (Plaintiff) Adam Mohammed (Defendant)
Representation:	Counsel: Ms L Goodchild with Mr B Tzatzagos (Plaintiff) Mr J Guihot (Defendant)   Solicitors: Stephen Cahill, Brydens Lawyers Pty Ltd (Plaintiff) Frances Allen, Moray & Agnew (Defendant)
File Number(s):	2016/297595
Publication restriction:	None

Judgment

Introduction

The plaintiff

The Claim

The accident

Facts not in dispute

Facts in dispute

The evidence on liability

The plaintiff’s evidence

The defendant’s evidence

Demeanour and Reliability

Findings on Liability

Whether the plaintiff was riding his bicycle on the footpath adjacent to Elizabeth Drive or in lane 1

The point at which the plaintiff saw the defendant’s vehicle

The point at which the defendant saw the plaintiff’s bicycle

The plaintiff’s response to the presence of the defendant’s vehicle

The defendant’s response to the presence of the plaintiff’s bicycle

The speed of the defendant’s vehicle prior to impact

The speed of the bicycle prior to impact

The rest position of the plaintiff’s person

The rest position of the plaintiff’s bicycle

Whether the motor fitted to the bicycle was running at the time of the accident

Contributory negligence

Failure to keep a proper lookout

Failure to approach and cross the intersection with caution

Riding a push bike on the footpath in breach of road rule 2014

Moving into the path of the defendant’s vehicle

Failure to take reasonable care for his own safety

Entering the intersection at an excessive speed in the circumstances

Analysis

The Evidence re Quantum

The plaintiff’s evidence

The evidence of Daniella Magro

The plaintiff’s medical reports – Exhibit C

Defendant’s medical reports – Exhibit 1

The plaintiff’s claim and the defendant’s position

Assessment of damages

Reliability of the plaintiff’s evidence re damages

Past economic loss

Past loss of superannuation benefits

Future economic loss

Past out of pocket expenses

Future out of pocket expenses

Past domestic assistance

ORDERS

Judgment

Introduction

1. The plaintiff was injured in an accident involving a motor vehicle which took place on 12 September 2012. He was riding his bicycle to work at the time.

2. The plaintiff claims to have suffered an injury to his neck, right shoulder, right knee and general shock as a consequence of the accident.

3. Breach of duty of care by…