Ozbayrak v Tekeli - [2017] NSWDC 261

District Court

New South Wales

Medium Neutral Citation: Ozbayrak v Tekeli [2017] NSWDC 261
Hearing dates: 2 August 2017, 4 August 2017, 7 August 2017, 6 September 2017
Date of orders: 20 September 2017
Decision date: 20 September 2017
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
(1) Judgment for the plaintiff.
(2) The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.
(3) Liberty to the parties to apply to vary the costs order in (2) above.
(4) The parties are to bring in Short Minutes of Order calculating the damages in accordance with these reasons within seven days;
(5) Exhibits to be returned after 28 days.

Catchwords: Torts – negligence – motor vehicle accident – gratuitous care and commercial care – plaintiff with an extensive history of prior injuries and conditions – extent to which the accident resulted in new injuries or the aggravation of existing injuries – whether need for commercial care
Legislation Cited: Civil Liability Act 2002 (NSW)
Evidence Act 1995 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Cases Cited: Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Curtis v Harden Shire Council [2014] NSWCA 314
Mason v Demasi [2009] NSWCA 227
Miller v Galderisi [2009] NSWCA 353
Strong v Woolworths Ltd (2012) 246 CLR 182
Wallace v Kam (2013) 250 CLR 375
Category: Principal judgment
Parties: Gulsen Ozbayrak (Plaintiff)
Selda Tekeli (Defendant)
Representation:
Counsel:
H Marshall SC (Plaintiff)
A Renshaw (Defendant)
Solicitors:
AJB Stevens Lawyers (Plaintiff)
Hall & Wilcox Lawyers (Defendant)

File Number(s): 2016/00035460

Judgment

In these proceedings, the plaintiff, Ms Gulsen Ozbayrak, seeks damages under the Motor Accidents Compensation Act 1999 (NSW) (“the Act”) for personal injuries said to have been suffered by her as a result of the negligence of her daughter in driving a motor vehicle in which the plaintiff was a passenger into a tree on 21 January 2013.
At all relevant times the plaintiff was not in paid employment. The evidence established that the plaintiff has never worked. Further, the plaintiff has not reached the impairment threshold of greater than 10% which allows the award of damages for non-economic loss under Section 131 of the Act.
The plaintiff’s claim was limited to one for damages for past out of pocket expenses, future out of pocket expenses and past and future care. Despite this, the case was strongly contested.
At the time of the accident, the plaintiff was wearing a seatbelt. There is no claim of contributory negligence.

The pleadings

Under the Amended Statement of Claim filed by the plaintiff on 12 September 2016 the plaintiff alleges that the accident occurred as a result of the negligence of her daughter, the defendant. On the second day of the trial, liability was admitted by the defendant and the hearing became largely an assessment of damages.
In the Statement of Particulars of Personal Injuries filed on 3 February 2016 the plaintiff particularises injuries to her…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWDC 261
Decision Date: 20 September 2017

CaseChat Overview and Summary

In the case of Ozbayrak v Tekeli, the plaintiff, Ozbayrak, sought damages for injuries allegedly sustained in a motor vehicle accident involving the defendant, Tekeli. The primary issue in this case was to determine the extent to which the accident caused new injuries or exacerbated existing conditions for Ozbayrak, who had a substantial history of prior injuries and medical conditions. The court had to evaluate the necessity and extent of commercial care required as a result of the accident. The case was heard in the Supreme Court of Victoria.

The central legal issue was whether Ozbayrak's need for commercial care post-accident was a direct result of the accident or if it stemmed from pre-existing conditions. The court needed to assess whether the injuries and the subsequent requirement for commercial care were attributable to the accident or if they were a continuation of pre-existing health issues. This involved a careful analysis of medical evidence and expert opinions regarding the extent of the injuries and the necessity for ongoing care.

The court found that the accident did result in new injuries and necessitated commercial care beyond what was required due to pre-existing conditions. In reaching this conclusion, the court relied on the medical evidence presented, which indicated that while Ozbayrak had a history of prior injuries, the accident caused significant additional harm that required ongoing treatment. The court found the defendant liable for the damages resulting from the accident. Consequently, judgment was entered in favour of the plaintiff.

The court ordered that the defendant pay the plaintiff's costs as agreed or assessed, with liberty to the parties to apply to vary the costs order. The parties were directed to prepare Short Minutes of Order to calculate the damages within seven days. Exhibits were to be returned after 28 days.

Orders

Orders of the court

(1) Judgment for the plaintiff.

(2) The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.

(3) Liberty to the parties to apply to vary the costs order in (2) above.

(4) The parties are to bring in Short Minutes of Order calculating the damages in accordance with these reasons within seven days;

(5) Exhibits to be returned after 28 days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Ozbayrak v Tekeli [2017] NSWDC 261
Hearing dates:	2 August 2017, 4 August 2017, 7 August 2017, 6 September 2017
Date of orders:	20 September 2017
Decision date:	20 September 2017
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the plaintiff. (2) The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed. (3) Liberty to the parties to apply to vary the costs order in (2) above. (4) The parties are to bring in Short Minutes of Order calculating the damages in accordance with these reasons within seven days; (5) Exhibits to be returned after 28 days.
Catchwords:	Torts – negligence – motor vehicle accident – gratuitous care and commercial care – plaintiff with an extensive history of prior injuries and conditions – extent to which the accident resulted in new injuries or the aggravation of existing injuries – whether need for commercial care
Legislation Cited:	Civil Liability Act 2002 (NSW) Evidence Act 1995 (NSW) Motor Accidents Compensation Act 1999 (NSW)
Cases Cited:	Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Curtis v Harden Shire Council [2014] NSWCA 314 Mason v Demasi [2009] NSWCA 227 Miller v Galderisi [2009] NSWCA 353 Strong v Woolworths Ltd (2012) 246 CLR 182 Wallace v Kam (2013) 250 CLR 375
Category:	Principal judgment
Parties:	Gulsen Ozbayrak (Plaintiff) Selda Tekeli (Defendant)
Representation:	Counsel: H Marshall SC (Plaintiff) A Renshaw (Defendant) Solicitors: AJB Stevens Lawyers (Plaintiff) Hall & Wilcox Lawyers (Defendant)
File Number(s):	2016/00035460