Spinks v Middlehurst [2014] NSWDC 19

District Court New South Wales

Medium Neutral Citation: Spinks v Middlehurst [2014] NSWDC 19 Hearing dates: 24/03/2014 - 26/03/2014 Decision date: 27 March 2014 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: Judgment for plaintiff for $437,489.60 Catchwords: Pedestrian worker, liability of driver and employer. Legislation Cited: Civil Liability Act 2002 Motor Accidents Compensation Act 1999 Workers Compensation Act 1987 Cases Cited: McLean v Tedman and Anor (1984) 155 CLR 306 Category: Principal judgment Parties: Gregory Spinks (Plaintiff) Angela Middlehurst (Defendant) Representation: R McIlwaine SC and C Thompson (Plaintiff) A Black SC (Defendant) Carroll & O'Dea (Plaintiff) McInnes Wilson Lawyers (Defendant) File Number(s): 2010/00382932 Publication restriction: No

Judgment 1The plaintiff was born in 1960 in Balmain. On 23 January 2009 he was injured when he was struck by a vehicle driven by the defendant. The plaintiff has sued the defendant for damages arising from his injuries. 2The defendant has denied that she was negligent and, in the alternative, said that if she was negligent then so too was the plaintiff. The defendant has also relied on Section 151Z of the Workers Compensation Act 1987 (the "WCA") to reduce any liability she had. She said the plaintiff's employer was partly to blame for the accident. 3The action is otherwise governed by the Motor Accidents Compensation Act 1999 (the "MACA"). The plaintiff claimed damages under the following heads: past and future economic loss (including lost superannuation benefits and Fox v Wood damages), past and future medical expenses, past gratuitous care and future commercial care. 4The plaintiff is not entitled to non-economic loss because he has not exceeded the threshold imposed by Section 131 of the MACA. 5Ultimately all of the heads of damages were agreed. The total was $476,862. The agreement was finalised on the last day of the hearing and after the completion of the evidence. This meant I had the opportunity to assess the plaintiff both in relation to his evidence on liability and his injuries. 6Another agreement that should be noted at this stage is that the parties agreed that for purposes of Section 151H of the WCA, the plaintiff met the 15% threshold. 7The plaintiff's background, including his work history, is set out in Exhibit A. Suffice to say, because damages have been agreed, that by the time of his accident the plaintiff was married with two sons, the family was living on the Central Coast and the plaintiff was travelling to work with the Sydney City Council where he was well established as a garbage truck driver. 8As a result of the accident the plaintiff has been left with a permanent disability in his right leg together with significant scarring. He has returned to work but has limitations on his previous capacity. In addition there has been an interference with his hopes to have taken a second job as a personal trainer.