Padash v Dungan

[2020] NSWDC 399

District Court

New South Wales

Medium Neutral Citation:

Padash v Dungan [2020] NSWDC 399

Hearing dates:

20-21 July 2020

Date of orders:

30 July 2020

Decision date:

30 July 2020

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph 193

Catchwords:

TORTS – negligence – motor accident – assessment of damages – nature and extent of personal injuries – significance for recovery of claims for future loss of aggravation of degenerative changes in plaintiff’s back and neck – mental harm arising consequently from physical injury – past and future out of pocket expenses – loss of income – future loss of earning capacity – future domestic assistance

Legislation Cited:

Civil Liability Act2002 (NSW), ss 3B, 5D, 5E, 13

Motor Accidents Compensation Act1999 (NSW), s 126

Cases Cited:

Avopiling Pty Ltd v Bosevski (2018) 98 NSWLR 171

El-Mohomad v Celenk [2017] NSWCA 242

Malec v JC Hutton (1990) 169 CLR 638

Purkess v Crittenden (1965) 114 CLR 164

Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208

Watts v Rake (1960) 108 CLR 158

Texts Cited:

Luntz, Assessment of Damages for Personal Injury and Death, LexisNexis Butterworths revised 4th ed, 2016

Category:

Principal judgment

Parties:

Mr H Padash (Plaintiff)
Ms R Dungan (Defendant)

Representation:

Counsel:
Ms E Welsh for the plaintiff
Mr J Ryan for the defendant

Solicitors:
Brydens Lawyers for the plaintiff
Moray & Agnew Lawyers for the defendant

File Number(s):

2019/366667

Publication restriction:

Nil

Judgment

INTRODUCTION

1. On 30 November 2016, at approximately 3:20pm, the defendant drove a motor vehicle into the rear of the motor vehicle driven by the plaintiff along Queens Road, Canada Bay. The collision caused the plaintiff to suffer personal injury.

2. By this proceeding, which was commenced on 21 November 2019, the plaintiff claims damages for personal injury caused by the said collision. The defendant admits liability, so the hearing concerned the assessment of damages. The issues concern the extent of the plaintiff’s injuries and disabilities and quantum in respect to the heads of damages.

3. By his statement of particulars, the plaintiff complains of injuries to his neck, lower back, left leg and shock, and disabilities associated with those respective injuries. At the hearing, his complaints reduced to injuries to his left lower back (producing pain in his left leg) and depression. The heads of damages claimed are for past and future out of pocket expenses, future domestic care and assistance, and past and future loss of income (including superannuation benefits).

4. Counsel for each party agreed that the critical issue is the Court’s assessment of the plaintiff’s credit. Surveillance footage was obtained on the defendant’s behalf in March 2018 and September 2019 which was at odds with the plaintiff’s description of his physical restrictions. Counsel for the defendant said in his opening that this circumstance was material to the evaluation of the medical evidence of the experts about his injuries.

EXTENT OF INJURIES

Plaintiff’s lay evidence of physical injuries

The plaintiff’s evidence

5. The plaintiff is 55 years of age. Prior to the subject accident he…