VARAGNOLO bht v RIJVEN [2007] NSWDC 45

New South Wales District Court

CITATION: VARAGNOLO bht v RIJVEN [2007] NSWDC 45 This decision has been amended. Please see the end of the judgment for a list of the amendments.

7-8 June 2006 HEARING DATE(S): 24-25 July 2006 6-7 February 2007

JUDGMENT DATE: 20 April 2007

JURISDICTION: Civil

JUDGMENT OF: Sidis DCJ

DECISION: Adjourned to a date to be fixed to deal with the issues raised in paragraphs 124 and 134 and the issue of costs

CATCHWORDS: Contributory negligence of infant plaintiff - Whether brain damage causative of intellectual deficits.

Figueroa v NSW Insurance Ministerial Corporation (1988) 27 MVR 154 Manley v Alexander (2005) 223 ALR 228-(2005) 44 MVR 308 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 CASES CITED: PY v RJS & others (1982) 2 NSWLR 700 Ryan v Pledge (2001) 33 MVR 453 Tobin v Worland (2005) 44 MVR 9 Vale v Eggins (2006) ATR 81-869

PARTIES: Alisha VARAGNOLO bht Steven Larkins Marilou RIJVEN

FILE NUMBER(S): Newcastle 451/04

COUNSEL: D T Kennedy SC-G J Smith - Plaintiff P R Cummings - Defendant

SOLICITORS: Turnbull Hill Lawyers - Plaintiff Moray & Agnew - Defendant

JUDGMENT

HER HONOUR

1 Alisha Varagnolo was struck by a motor vehicle driven by the defendant when she was crossing Maitland Road, Mayfield on 6 May 1999. She was born on 8 January 1991. At the time of the accident the plaintiff was eight years old. She is now 16.

2 Breach of the duty of care is admitted. The issues for determination were: (1) whether there was contributory negligence on the part of the plaintiff, and, if so, its extent; (2) the damages to be awarded in respect of the injuries suffered by the plaintiff, in particular, the award to be made for loss of income earning capacity.