Rajcevic v Downing [2008] NSWDC 98

New South Wales District Court

CITATION: Rajcevic v Downing [2008] NSWDC 98

HEARING DATE(S): 4, 5 and 6 March and 30 April 2008

JUDGMENT DATE: 30 April 2008

JURISDICTION: District Court Civil Jurisdiction

JUDGMENT OF: Johnstone DCJ at 1

DECISION: Judgment for the plaintiff for $254,999.40 The defendants are to pay the plaintiff's party/party costs; such costs to be assessed on the ordinary basis up to 26 February 2008 and thereafter on an indemnity basis

CATCHWORDS: NEGLIGENCE – motor accident – the plaintiff was a passenger in rear of vehicle being driven on a building site – the driver took an unsafe shortcut involving a foreseeable risk of injury - contributory negligence not proven in that no seatbelt was available for the plaintiff's use - DAMAGES – assessment of past lost earnings and diminution of future earning capacity having regard to pre-existing orthopaedic and psychological conditions

LEGISLATION CITED: Motor Accidents Compensation Act 1999: s 112(1): s 126, s 131 Workers Compensation Act 1987 (NSW): s 151Z(2)

CASES CITED: Fox v Leighton Contractors Pty Ltd [2008] NSWCA 23 at [47] - [48]

Cedomir Rajcevic (Plaintiff) PARTIES: Greg Downing (First defendant) Abigroup Contractors Pty Ltd (Second defendant)

FILE NUMBER(S): 1255/07

COUNSEL: Mr J Keesing (Plaintiff) Mr R O'Keefe (Defendants)

SOLICITORS: Petrovich Accident Lawyers (Plaintiff) Rankin Nathan Lawyers (Defendants)

The proceedings and the issues 1. Cedomir Rajcevic was injured in a motor accident on 7 April 2005 when he was a passenger seated in the rear of a vehicle driven by the first defendant, Greg Downing. The second defendant, Abigroup Contractors, was the registered owner of the vehicle. Mr Rajcevic was working for Abigroup on hire from his employer, Telum Pty Ltd. He commenced these proceedings for damages. The defendants denied any breach of duty and alleged contributory negligence, asserting that Mr Rajcevic had failed to wear the seat belt provided.