Polo v The Nominal Defendant

[2019] NSWDC 53

District Court

New South Wales

Medium Neutral Citation:	Polo v The Nominal Defendant [2019] NSWDC 53
Hearing dates:	6-8 February 2019; 11 February 2019
Date of orders:	14 March 2019
Decision date:	14 March 2019
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the plaintiff. (2) The defendant is to pay the plaintiff the sum of $100,320.18. (3) The defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed. (4) Liberty to the parties to approach the court if a different costs order is sought to that set out in (3) as above. (5) Exhibits to be returned in 28 days.
Catchwords:	Torts – negligence – motor vehicle accident – liability not in issue – extent of plaintiff's injuries and restrictions – future out-of-pocket expenses – need for future commercial care in dispute
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW)
Cases Cited:	Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 Avopiling Pty Ltd v Bosevski [2018] NSWCA 146 Bale v Mills [2011] NSWCA 226 at [63]; (2011) 81 NSWLR 498 Mason v Demasi [2009] NSWCA 227 Miller v Galderisi [2009] NSWCA 353 Smith v Alone [2017] NSWCA 287 Sretenovic v Reed [2009] NSWCA 280 White v Benjamin [2015] NSWCA 75 Zhang v Zayati [2018] NSWDC 385
Category:	Principal judgment
Parties:	Rosa Polo (Plaintiff) The Nominal Defendant (Defendant)
Representation:	Counsel: R Di Michiel (Plaintiff) A Renshaw (Defendant)   Solicitors: Premier Law (Plaintiff) Hall & Wilcox Lawyers (Defendant)
File Number(s):	2018/00057560

Judgment

1. These proceedings relate to alleged injuries suffered by the plaintiff in a motor vehicle accident which occurred on 20 December 2014. At that time, the plaintiff was a passenger in a motor car driven by her adult daughter. A motorcycle travelled onto the wrong side of the road at high speed and struck the vehicle in which the plaintiff was sitting. The motorcycle was unregistered and uninsured at the time and accordingly the Nominal Defendant is the proper defendant in the proceedings. Liability is not in issue.

2. The proceedings therefore involve an assessment of the damages to which the plaintiff is entitled for the admitted breach of the duty of care. These are claimed by the plaintiff under the Motor Accidents Compensation Act 1999 (NSW) (“MACA"). The plaintiff has not reached the impairment threshold of greater than 10% which allows the award of damages for non-economic loss under s 131 of MACA. The plaintiff's claim is for:

1. Past out-of-pocket expenses;

2. Future out-of-pocket expenses;

3. Past economic loss;

4. Loss of future earning capacity and future superannuation loss; and

5. A claim for future assistance on the basis of paid commercial care.

3. As is common in these cases, there is a substantial dispute between the parties as to the amount of damages to which the plaintiff is entitled. This turns on the extent of the plaintiff's injuries, if any, suffered in the accident and any ongoing pain and restrictions.

The pleadings

4. The plaintiff relies on an Amended Statement of Claim filed on 21 March…