Zhang v Fornito [2009] NSWDC 143

New South Wales District Court

CITATION: Zhang v Fornito [2009] NSWDC 143

HEARING DATE(S): 25, 26, 27 and 28 May 2009

JUDGMENT DATE: 29 June 2009

JURISDICTION: Civil

JUDGMENT OF: Hungerford ADCJ

DECISION: Verdict for the plaintiff against the defendant in the amount of $256,295.33; the parties will be heard on costs before final orders are made.

CATCHWORDS: TORTS - Motor vehicle accident - Negligence - Personal injury - Physical injuries and developed psychological injury - Liability of defendant admitted - Assessment of damages - Contributory negligence by plaintiff - Causal relationship of injuries to motor accident - Degree of impairment of earning capacity - Domestic assistance

LEGISLATION CITED: Motor Accidents Compensation Act 1999, ss 83(5), 124, 128, 130(b), 131 and Pt 3.4

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Fennell v Supervision and Engineering Services Holdings Pty Ltd (1988) 47 SASR 6 CASES CITED: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 Roads and Traffic Authority v McGregor [2005] NSWCA 388

PARTIES: Hui Qin Zhang - Plaintiff Salvatore Fornito - Defendant

FILE NUMBER(S): No 5266 of 2007

COUNSEL: Mr AJ Lidden SC and Mr RG Hanlon for Plaintiff Mr JB Turnbull for Defendant

SOLICITORS: Brydens Law Office for Plaintiff Curwoods Lawyers for Defendant

JUDGMENT

1 On the evening of 19 October 2003 at about 8.00pm the plaintiff, Hui Qin Zhang, was riding her bicycle returning home after visiting a friend. In proceeding through a roundabout at the intersection of Redman Street and Gould Street at Campsie the bicycle was struck on the rear wheel by a motor vehicle driven by the defendant, Salvatore Fornito, momentarily after he entered the roundabout. Although not wearing a helmet at the time, no head injury was sustained as the plaintiff fell to the roadway but injuries were allegedly suffered to her neck, left shoulder, back and ankle; the plaintiff herself was not hit by the vehicle. She was transported to Canterbury Hospital by ambulance for review and observation overnight and was discharged the following day. Gradually, over time she became anxious and has not since been able to perform gainful employment.