Safi v Zhao [2009] NSWDC 103

New South Wales District Court

CITATION: Safi v Zhao [2009] NSWDC 103

HEARING DATE(S): 30 April 2009 and 1 May 2009

JUDGMENT DATE: 29 May 2009

JURISDICTION: Civil

JUDGMENT OF: Hungerford ADCJ

DECISION: The plaintiff is entitled to a verdict against the defendant in the amount of $20,250.70. The parties will be heard on costs before final orders are made.

CATCHWORDS: TORTS - Motor vehicle accident - Negligence - Personal injury - Liability admitted - Assessment of damages - Previous accidents - Effect of pre-existing injuries - Injuries from subject accident temporary aggravation of pre-existing condition - Present injuries resolved to pre-accident condition

LEGISLATION CITED: Motor Accidents Compensation Act 1999, ss 81(1), 128 and 131

CASES CITED: Nil

PARTIES: Mohammed Safi - Plaintiff Kun Zhao - Defendant

FILE NUMBER(S): No 2572 of 2008

COUNSEL: Mr AC Canceri for Plaintiff Ms C Allan for Defendant

SOLICITORS: CMC Lawyers for Plaintiff Sparke Helmore for Defendant

JUDGMENT

1 This action arose from a motor vehicle accident on 6 February 2005 as the plaintiff, Mohammed Safi, was driving his vehicle east along Parramatta Road, Broadway towards the city. The defendant, Kun Zhao, was travelling in the opposite direction and, in attempting to make a right-hand turn, struck another motor vehicle resulting in multiple vehicle collisions including to the plaintiff's vehicle which was towed from the scene; he then went home. The next day he experienced pain in the head, neck, shoulders and back and brought this action to recover damages from the defendant for negligence.

The issues

2 The defendant admitted liability pursuant to a notice given under s 81(1) of the Motor Accidents Compensation Act 1999 (the MAC Act) so that the present proceedings were concerned with the assessment of damages only. The plaintiff's claim in that respect was for out-of-pocket expenses, economic loss (including lost superannuation) and gratuitous attendant care services; non-economic loss was not pursued, by reason of s 131 of the MAC Act, as the plaintiff was assessed for whole person impairment not greater than 10 per cent. However, the claim for damages was wholly resisted by the defendant on the basis, essentially, that the plaintiff's injuries were of a minor nature and had resolved, he had not in fact incurred any loss of wages and the domestic assistance provided was much the same as before the accident.