Azzo v Sun; Azzo v Harrington Custodian Pty Ltd, Millennium Hi-Tech Group Pty Ltd and Coles Supermarket Australia Pty Ltd [2022] NSWDC 45

District Court New South Wales

Medium Neutral Citation: Azzo v Sun; Azzo v Harrington Custodian Pty Ltd, Millennium Hi-Tech Group Pty Ltd and Coles Supermarket Australia Pty Ltd [2022] NSWDC 45 Hearing dates: 27, 28, 29 and 30 September 2021 and 15 October 2021 (for further directions). Written submissions by the Plaintiff dated 30 September 2021, 15 and 19 October 2021; Defendant (Mr Sun) dated 11 October 2021; Defendant (Millennium) dated 30 September 2021 and Defendant (Coles) dated 30 September 2021. Date of orders: 09 February 2022 Decision date: 09 February 2022 Jurisdiction: Civil Before: Hatzistergos DCJ Decision: See [359] Catchwords: PERSONAL INJURY –– Motor vehicle accident – liability admitted DAMAGES –– Loss of earning capacity – Where the Defendant seeks to impugn Plaintiff's tax returns filed after the motor vehicle accident as a basis for calculation of loss of earning capacity such that it was not possible to determine what the Plaintiff's earnings were – Where Court finds to the contrary – Claim for future domestic assistance on commercial basis not accepted – Claims for past and future out of pocket expenses claimed allowed in part PERSONAL INJURY –– Slip and fall accident – in the common area of a shopping centre due to liquid substance on the floor proximate to the entrance of the supermarket – Consideration of liability of both the shopping centre cleaner and supermarket – Breach of duty against both Defendants found CROSS-CLAIM –– Where Defendants in slip and fall case file cross-claim against each other seeking indemnity in respect of any liability – Apportionment of liability against both Defendants – Where the shopping centre cleaners are found to have relatively greater responsibility than the supermarket – Determination of apportionment between Defendants DAMAGES –– Plaintiff alleges an independent injury to the left shoulder arising from slip and fall and aggravation of injuries occasioned in motor accident –Plaintiff's claim with regard to the injury to the left shoulder not accepted – Aggravation of neck and back injuries as a result of the slip and fall accepted but the impact found to be relatively minor. DAMAGES –– Non-economic loss not awarded by the Court – Past out-of-pocket expenses allowed. Legislation Cited: Civil Liability Act 2002 (NSW) ss 5B, 5D, 16 District Court (Civil) Practice Note 1 Evidence Act 1995 (NSW) ss 60, 136, Law Reform (Miscellaneous Provisions) Act 1946 ss 5, Motor Accidents Compensation Act 1999 (NSW) ss 83, 84A, 126, 141B Uniform Civil Procedure Rules 2005 (NSW) rr 21.12 Cases Cited: Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176 Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 Dyldam Developments Pty Limited v Jones [2008] NSWCA 56 Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103; [2020] NSWCA 65 Miller v Galderisi [2009] NSWCA 353 Morvatju v Moradkhani [2013] NSWCA 157 Mott v Crest Cabinets [2004] QSC 096 MWJ V R [2005] HCA 74; (2005) 80 ALJR 329; 222 ALR 436 Smith v Alone [2017] NSWCA 287 State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 356 Kallouf v Middis [2008] NSWCA 61 State of New South Wales v Skinner [2022] NSWCA 9 Strong v Woolworths [2021] HCA 5; (2012) 246 CLR 182 Wallace v Kam (2013) 250 CLR 375 Watt v Bretag (1982) 41 ALR 597; (1982) 56 ALJR 760 White v Benjamin [2015] NSWCA 75 White v Combridge (1984) 59 ACTR 18 Category: Principal judgment Parties: Proceedings 2019/373897 Maurice Azzo (Plaintiff) Jiamin Sun (Defendant) in