Yousef Sukkarieh v Nominal Defendant

CITATION:	Yousef Sukkarieh v Nominal Defendant [2008] NSWDC 163
HEARING DATE(S):	July 15,16, 17 2008
JUDGMENT DATE:	14 August 2008
JURISDICTION:	Civil
JUDGMENT OF:	Murrell SC DCJ
DECISION:	See Paragraphs 53 and 54
CATCHWORDS:	Pedestrian accident, unidentifiable vehicle, due inquiry and search, negligence, future economic loss.
LEGISLATION CITED:	Motor Accidents Compensation Act 1999 (NSW)
CASES CITED:	Harrison v Melhem [2008] NSWCA 67 Nominal Defendant v Swift; Wollondilly Shire Council v Swift [2007] NSWCA 56
PARTIES:	Yousef Sukkarieh (Plaintiff) Nominal Defedant
FILE NUMBER(S):	5307/2006
COUNSEL:	Michael Maxwell David O'Dowd
SOLICITORS:	Ray Abbas, Gerard Malouf & Partners Moray & Agnew

JUDGMENT

Yousef Sukkarieh v Nominal Defendant

1 On 15 February 2005, the plaintiff (date of birth 11 November 1984) presented at Westmead Hospital with a fractured right medial malleolus, right knee avulsion fracture of the fibula, minimal fracture of the left lateral malleolus and multiple skin abrasions. He said that he had tripped as he was crossing the road and his legs had been run over. The Hospital undertook an open reduction and internal fixation of the fractured right ankle. The plaintiff's right leg was placed in a non - weight bearing cast for six week. His left leg was placed in a weight bearing cast. On 2 March, he was transferred to St Joseph's Hospital, where he received rehabilitation as an inpatient. On 7 March, he was discharged. Since the accident, the plaintiff has worked sporadically. He has not resumed his pre - accident sporting activities of kickboxing and social football.

Issues

I. Were the injuries sustained in the manner described by the plaintiff?
II. Has the plaintiff shown that, after due inquiry and search, the identity of the vehicle cannot be established?
III. Was the plaintiff guilty of contributory negligence?
IV. To what extent has the plaintiff suffered past and future economic loss because of the accident?
V. To what extent did the plaintiff require domestic assistance following the accident?
VI. The amount of the plaintiff's past and future out-of-pocket expenses.

The Accident

2 The plaintiff said that, early on the morning of 15 February 2005, he travelled by train to Parramatta for the purpose of enquiring about possible work in the Harris Park area. He crossed Parkes Street by the route described in Exhibit C. As he reached the fourth (southern kerbside) lane, he tripped. His head hit the ground. He landed on his back with his head towards the gutter and his feet towards the middle of the road. He saw a small landscaping - type truck ("a couple of tonne") coming from his right and veering to it's left. It ran over his legs. It did not stop. The impact pushed him a couple of metres back onto the footpath. After about five (or, possibly, up to fifteen) minutes, a driver pulled over and conveyed him to Westmead Hospital.

3 The defendant submitted that the plaintiff's version of events should not be accepted on the balance of probabilities.

4 First, the defendant submitted that the plaintiff should…