Se by her Tutor AH v Grech

[2020] NSWDC 474

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

SE by her Tutor AH v Grech [2020] NSWDC 474

Hearing dates:

28 & 29 July 2020

Date of orders:

21 August 2020

Decision date:

21 August 2020

Jurisdiction:

Civil

Before:

Gibson JC DCJ

Decision:

Orders:

(1) Judgment for the plaintiff for $0.

(2) Costs reserved, with liberty to apply.

(3) Exhibits retained until further order.

Catchwords:

PERSONAL INJURY – assessment of damages

Legislation Cited:

Civil Liability Act 2002 (NSW) ss 5E, 31

Uniform Civil Procedure Rules 2005 r 42.35

Motor Accidents Compensation Act 1999 (NSW) ss 92(1)(a), 126

Cases Cited:

Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17

Dank v Nationwide News Pty Ltd [2016] NSWSC 295

Langmaid v Dobsons Vegetable Machinery Pty Ltd [2014] TASFC 6

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Stitz v Manpower Services & Anor [2011] QSC 268

South Western Sydney Local Health District v Gould [2018] NSWCA 69

The Nominal Defendant v Kostic [2007] NSWCA 14

Whalan v Kogarah Municipal Council [2007] NSWCA 5

Texts Cited:

The Honourable Justice Ipp, ‘Problems with Fact-Finding’, (2006) 80 Australian Law Journal 667

Category:

Principal judgment

Parties:

SE by her tutor AH(Plaintiff)
Alesha Ann Grech (Defendant)

Representation:

Counsel:
Mr Jobson(Plaintiff)
Mr A J J Renshaw and Mr J Nottle (Defendant)

Solicitors:
Plaintiff: Marcel Joukhador (Harrow Legal)
Defendant: Giuseppe Mancuso (Hall & Wilcox Lawyers)

File Number(s):

2019/80873

Publication restriction:

Plaintiff’s name anonymised

Judgment

The plaintiff’s claim for damages

1. The plaintiff, by statement of claim filed on 15 May 2019, brings proceedings for damages for injuries she suffered in a motor vehicle accident on 19 December 2015. SE, whose name has been anonymised for reasons set out in more detail below is twelve years old, and thus brings these proceedings through a tutor, her mother, pursuant to a Certificate of Exemption issued under s 92(1)(a) of the Motor Accidents Compensation Act 1999 (NSW).

2. The statement of claim sets out that the plaintiff suffered injury whilst a passenger in a vehicle which at the time of the accident was stationary in traffic on Bay Street in Brighton-le-Sands, Sydney, New South Wales. This vehicle was struck from the rear by the defendant’s car with such force that the plaintiff and her fellow passengers were impacted as their own vehicle rammed forward into the vehicle in front. The ensuing five-car pile-up created a major traffic incident and the police and ambulance were called.

The parties’ pleadings

3. The Statement of Particulars on 15 May 2019 identified the injuries the plaintiff suffered as follows:

(a)   An injury described as “broken nose/fracture”; and

(b)   Post Traumatic Stress Disorder.

4. The plaintiff’s continuing disabilities were described as:

(a)   Difficulty breathing;

(b)   Loss of hearing; and

(c)   Loss of balance.

5. The Statement of Particulars served with the statement of claim identified future treatment expenses as “extensive surgery in relation to her nose and hearing loss,” adding that details of these expenses would be “advised”. A claim for economic loss was foreshadowed on the basis…