Shayne Henderson v Darren McLean (Taree) [2007] NSWDC 199

New South Wales District Court

CITATION: Shayne Henderson v Darren McLean (Taree) [2007] NSWDC 199

HEARING DATE(S): 1/8/07-2/8/07, 4/9/07

JUDGMENT DATE: 5 October 2007

JURISDICTION: Civil

JUDGMENT OF: Rolfe DCJ

DECISION: 1. Verdict and Judgment for the plaintiff against the Defendant in the amount of $148,825; 2. Order the 1st Defendant to pay the Plaintiff's costs of the proceedings against 1st Defendant, such costs to be agreed or assessed on the ordinary basis; 3. I direct that the exhibits be retained in the registry for six weeks; 4. I publish my reasons; 5. I grant a stay of enforcement of the Judgment up to and including 8/11/07.

CATCHWORDS: Motor Vehicle Accident - Pedestrian Injured in early hours of the morning crossing Pacific Highway - Breach of Duty Considered - Contributory Negligence - Various aspects of damages considered

LEGISLATION CITED: Civil Liability Act 2002 Motor Accidents Compensation Act 1999

PARTIES: Shayne Henderson (Plaintiff) Darren McLean (1st Defendant)

FILE NUMBER(S): 61/2005

COUNSEL: R Letherbarrow SC with D M Wilson (Plaintiff) D Russell SC (1st Defendant)

JUDGMENT

1 The plaintiff in these proceedings, Shayne Henderson, was injured in a motor vehicle accident on 16 August 2002 and brings this claim for damages in negligence against the 1st defendant, Darren McLean. As the proceedings between the plaintiff and the 2nd Defendant, Daryl John Potts, were settled prior to commencement of the hearing, for convenience, I will refer in this judgment to Mr McLean as "the defendant".

2 The plaintiff was born on 18 February 1965 in Sydney and so he will shortly be 43 years of age. He lives in a rented property in Taree West with Sharon Taylor, the mother of his two sons who are aged 12 and 4 years respectively. The plaintiff and Ms Taylor both said that they had known each other for 20 years and had lived as man and wife on and off during that period. At the time the case was heard in Taree District Court in July 2007, they were not living as man and wife and the plaintiff was sleeping in a separate room.