Olgun v Kilic

[2019] NSWDC 235

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Olgun v Kilic [2019] NSWDC 235
Hearing dates:	29 – 31 May 2019
Date of orders:	06 June 2019
Decision date:	06 June 2019
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	See paragraph 195.
Catchwords:	TORTS – Motor Vehicle Accidents – “blameless accident” – test for causation once fault is deemed.   DAMAGES – past out-of-pocket expenses – past loss of earning capacity – future out-of-pocket expenses – future loss of earning capacity – future commercial care.
Legislation Cited:	Civil Liability Act 2002 (NSW) Motor Accident Compensation Act 1999 (NSW)
Cases Cited:	Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 Amaca Pty Ltd v Latz [2018] HCA 22 Avopiling Pty Ltd v Bosevski [2018] NSWCA 146 Civil Liability Act: Fairall v Hobbs [2017] NSWCA 82 Coles Supermarket v Haleluka [2012] NSWCA 343 CSR Ltd v Eddy (2005) 226 CLR 1 DC v State of New South Wales [2016] NSWCA 198 Graham v Baker (1961) 106 CLR 340 Husher v Husher (1999) 197 CLR 143 Matchan v Lyons [2003] NSWCA 384 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Miller v Galderisi [2009] NSWCA 353 Nominal Defendant v Livaja [2011] NSWCA 121 Penrith City Council v Parks [2004] NSWCA 201 Pollard v Baulderstone Hornibrook Engineering Pty Ltd (2008) 172 IR 453 Ruby v Marsh (1975) 132 CLR 642 Seltsam v Ghaleb [2005] NSWCA 208 State of New South Wales v Moss (2000) 54 NSWLR 536
Category:	Principal judgment
Parties:	Mr Olgun (Plaintiff) Mr Kilic (Defendant)
Representation:	Counsel: Mr M Daley (Plaintiff) Mr R Cavanagh SC (Defendant)   Solicitors: Brydens Lawyers Pty Ltd (Plaintiff) McCabe Curwood (Defendant)
File Number(s):	2017/145701
Publication restriction:	Nil

Judgment

BACKGROUND

1. On 2 May 2015 the plaintiff was a front seat passenger in a Honda Civic Hatchback motor vehicle which was driving back to Sydney from Wollongong late in the afternoon and early evening. The car was driven by the defendant, a friend of the plaintiff. The plaintiff, the defendant and the defendant’s son (a back seat passenger in the same car) had enjoyed a day of leisure, spent mainly fishing, in Wollongong.

2. At a point along Heathcote Road, close to the intersection with the Princess Highway, the defendant lost control of the vehicle so that it collided with rocks on the opposite side of the carriageway.

3. By this proceeding, the plaintiff claims damages for personal injuries against the defendant driver. On the first day of the trial, the defendant admitted liability, on the sole basis that this was a ‘blameless accident’ (within the meaning of s 7A of the Motor Accident Compensation Act 1999 (NSW) (the Act). The defendant does not admit that the plaintiff suffered injury or is entitled to damages. The general issue, accordingly, concerns the assessment of damages.

4. In his opening, Counsel for the plaintiff indicated that the plaintiff continues to suffer pain in his neck and both hips. The plaintiff brings claims for:

1. past out-of-pocket expenses;

2. past wage loss (for the period June…