Ragg v Palmer

[2016] NSWDC 14

District Court

New South Wales

Medium Neutral Citation:	Ragg v Palmer [2016] NSWDC 14
Hearing dates:	24 February 2016
Date of orders:	25 February 2016
Decision date:	25 February 2016
Jurisdiction:	Civil
Before:	Elkaim SC DCJ
Decision:	Judgment for the plaintiff for $608,305.53
Catchwords:	Contributory negligence by 11 year old boy, assessment of damages
Legislation Cited:	Motor Accident Compensation Act 1999 Civil Liability Act 2002 Evidence Act 1995
Cases Cited:	Roach v Page (No 11) [2003] NSWSC 907 T and X Company v Chivas [2014] NSWCA 235
Category:	Principal judgment
Parties:	Dale William Ragg (Plaintiff) Calan Palmer (Defendant)
Representation:	Counsel: R Foord (Plaintiff) I Roberts SC (Defendant)   Solicitors: Farrell Lusher Solicitors (Plaintiff) Moray & Agnew (Defendant)
File Number(s):	2010/00304162

Judgment

1. On 8 October 2008 the plaintiff was injured in a motor vehicle accident. He was then 11 years of age. He is now 19 years of age so that he is able to continue the proceedings in his own right.

2. The plaintiff says the defendant was at fault in the accident. The defendant agrees and has admitted breach of its duty of care to the plaintiff. The defendant however says that there was contributory negligence on the plaintiff’s part, perhaps as much as 20%. The allegation arises from the plaintiff’s admitted failure to wear a seatbelt.

3. The plaintiff seeks damages under the following heads: non-economic loss, past and future economic loss, past and future domestic assistance and medical expenses.

4. The action is governed by the Motor Accident Compensation Act 1999 (the “MACA”). Section 5R of the Civil Liability Act 2002 (the “CLA”) has a part to play in the assessment of contributory negligence.

The plaintiff’s background

5. The plaintiff was born in 1996. He attended primary school in Deniliquin. He was not a good student having problems both academically and some behavioural issues. The plaintiff was living with his mother and stepfather. From time to time he visited his stepfather on a farm. The plaintiff liked farming.

6. This is a convenient point at which to make some remarks about the plaintiff. There were no credit issues in the case. The plaintiff is a very impressive person. He obviously lacks sophistication. In the witness box he sometimes found questions difficult to answer. Whenever that occurred he asked for the question to be put in simpler words. When he did answer questions however he patently did so honestly, frequently volunteering matters to assist even if they did not assist his own case.

7. He has become an extremely responsible and hardworking young man. His attitude to life belies his tender age of 19. His work ethic has undoubtedly limited the damages the defendant will have to pay him.

The accident

8. The plaintiff was a passenger in a small Holden hatchback driven by his mother. He was seated in the rear seat. The accident occurred at the intersection of Fowler Street and Henry Street in Deniliquin. The defendant was drunk, speeding and failed to give way at the intersection. As a…