Dakin v Payne [2012] NSWDC 22

District Court New South Wales

Medium Neutral Citation: Dakin v Payne [2012] NSWDC 22 Hearing dates: 05/03/12 - 09/03/12, 12/03/12 Decision date: 15 March 2012 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: See paragraph 94 Catchwords: Personal injury, assessment of damages, contributory negligence Legislation Cited: Civil Liability Act 2002 Motor Accidents Compensation Act 1999 Category: Principal judgment Parties: Tracey Dakin (Plaintiff) Robert Darrell Payne (Defendant) Representation: G Miller QC, C Thompson (Plaintiff) R Bartlett SC, B Kelleher (Defendant) Carroll & O'Dea (Plaintiff) Sparke Helmore (Defendant) File Number(s): 2008/00318761 Publication restriction: No

Judgment 1Exhibit A includes a map. It shows the scene of an accident. The plaintiff was travelling along Sir Warwick Fairfax Drive toward Camden Valley Way. The intersection of these roads is governed by traffic lights. Her intention was to proceed straight across Camden Valley Way and along Anderson Road. She was taking her daughter Rebekah to ballet. Her son Jordan and her youngest child, Madison, were also in the Holden Commodore. It was Thursday the 1 st of September 2005 at about 5pm. Conditions were 'fine'. 2The defendant was travelling in the opposite direction. He was driving his large white tipper truck along Anderson Street with the intention of turning right into Camden Valley Way. As the plaintiff was crossing Camden Valley Way the defendant was commencing his right hand turn across her path. There was a collision. The plaintiff was seriously injured. 3The plaintiff says her injuries were caused by the negligence of the defendant. The defendant initially denied negligence but it was ultimately conceded and the focus turned to contributory negligence. 4The action is governed by the Motor Accidents Compensation Act 1999 (the "MACA"). The level of the plaintiff's injuries is accepted by the defendant to entitle her to non-economic loss under Section 131 of the MACA. 5The plaintiff's background, demonstrating her excellent work history, can be seen in the chronology (Exhibit B). The plaintiff has three children, Jordan born in 1996, Rebekah born in 2000 and Madison born in November 2004. The two elder children are the produce of the plaintiff's first marriage. The third child has resulted from her union with Mr Luke Bailey with whom she and all the children currently reside. 6The plaintiff was working as a " workroom aide " for Douglass Hanly Moir Pathology as a receptionist in their Liverpool rooms. She was working 25 hours per week designed to cater for the needs of her children. When the accident occurred she was on maternity leave and due to return to work on 5 December 2005. Her intention was to continue as before but to graduate to fulltime work when Madison entered Year 7. Her ambition was to become a pathology collector. 7Fortunately the plaintiff's children did not suffer any significant injury in the accident. The plaintiff suffered very serious injuries, in particular to her feet, legs and back. The effects of the injuries are permanent and dictate her everyday life. Prior to the accident she was a fun loving active mother and partner, engaged to Mr Bailey and looking forward to raising her children and developing her career. 8The plaintiff seeks damages under the following heads: non-economic loss, past and future medical expenses, past and future economic loss, past and future domestic care and past and future care for her children, the latter pursuant to Section 15B of the Civil Liability Act 2002 (the "CLA").