Danielle Duncan v The Nominal Defendant [2013] NSWDC 117

District Court New South Wales

Medium Neutral Citation: Danielle Duncan v The Nominal Defendant [2013] NSWDC 117 Hearing dates: 13, 14, 15,16 and 17 May 2013 Decision date: 12 July 2013 Before: Judge Andrew Haesler SC DCJ Decision: Judgment for the Plaintiff in the sum of $314,566.00 Catchwords: Motor Vehicle accident Contributory negligence Assessment of damages Economic loss only Legislation Cited: Civil Liability Act 2002 Civil Procedure Act 2005. Law Reform (Miscellaneous Provisions) Act 1965 Motor Accidents Act 1988 Motor Accidents Compensation Act 1999 Uniform Civil Procedures Rules (UCPR) Cases Cited: Henderson v Hassel (1986) 3 MVR 359 James v Williams [2003] SASC 22 O'Neil v Liddle [2012] NSWCA 267 Sibley v Kais (1967) 118 CLR 424 Waverley Council v Ferreira [2005] NSWCA 418. Category: Principal judgment Parties: Danielle Duncan (Plaintiff) The Nominal Defendant (Defendant) Representation: Ms K Balendra (Plaintiff) Mr W Fitzsimmons (Nominal Defendant) Mr C Jeremy (Cater & Blumer) (Plaintiff) Ms A Crosbie (Moray & Agnew Lawyers) (Defendant) File Number(s): 2011/363218

Judgment

Introduction 1On 3 March 2004, on the Kidman Way south of the Murrumbidgee River, there was a collision between a light coloured Suzuki Sierra utility, driven by Shaun Filmer and a green Toyota Camry sedan driven by the Plaintiff, Danielle Duncan. The Plaintiff suffered injuries but they fall short of the10% permanent impairment level, thus precluding her from making a claim for non-economic loss: s 131 Motor Accidents Compensation Act 1999 (the Act). She says however that the accident caused her disabilities that have resulted in considerable economic loss. She claims compensation for that loss together with future domestic assistance and treatment costs. 2It is not in dispute that Shaun Filmer breached his duty of care to other road users. The Nominal Defendant is the proper Defendant in this matter as the vehicle he drove was uninsured. The Defendant disputes the level of loss claimed and compensation sought and submits that any compensation awarded be proportionally reduced because the Plaintiff's own negligence contributed to her injuries. 3The Plaintiff's claim was heard before me at Griffith District Court on 13, 14, 15, 16 and 17 May 2013. These are my reasons for rejecting the asserted contributory negligence and awarding damages of $314,566.00 to the Plaintiff.