Hall v Yang [2014] NSWDC 36

District Court New South Wales

Medium Neutral Citation: Hall v Yang [2014] NSWDC 36 Hearing dates: 24, 25, 26, 27 & 30 September, 11 October, last submissions received 20 January 2014 Decision date: 17 April 2014 Jurisdiction: Civil Before: Levy SC DCJ Decision: (1)Finding that the defendant was negligent; (2)Finding that there was contributory negligence on the part of the plaintiff; (3)The respective culpabilities of the parties is apportioned at 75 per cent on the part of the defendant and 25 per cent on the part of the plaintiff; (4)The plaintiff's damages are assessed in the sum of $1,310,827.15; (5)After apportionment, verdict and judgment for the plaintiff in the apportioned amount of $983,120.32; (6)The defendant is to pay the plaintiff's costs of the proceedings on the ordinary basis unless otherwise ordered; (7)The exhibits may be returned; (8)Liberty to apply on 7 days notice if further orders are required. Catchwords: TORTS - negligence - motor vehicle accident - defendant taxi driver made right turn across path of plaintiff's motorcycle travelling in opposite direction in suburban street - whether defendant negligent - whether speed of plaintiff's motorcycle constituted furious driving to enable defence claimed pursuant to s 54 of Civil Liability Act 2002 - whether contributory negligence on part of plaintiff; DAMAGES - traumatic brain injury - orthopaedic injuries - assessment of claimed heads of damage in context of plaintiff's participation in statutory lifetime care scheme - assessment of loss of earning capacity where self-employed plaintiff failed to lodge income tax returns and his business records were poor and incomplete - use of average weekly earnings as basis for assessment Legislation Cited: Civil Liability Act 2002, s 5E, s 54 Crimes Act 1900, s 53 Evidence Act 1995, s 60, s 136 Felons (Civil Proceedings) Act 1981 Motor Accidents Compensation Act 1999, s 126 Motor Accidents (Lifetime Care and Support) Act 2006 Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Daly v Theiring [2013] HCA 45 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 Jovanovski v Billbergia Pty Ltd [2011] NSWCA 135 Manley v Alexander [2005] HCA 79; (2005) 223 ALR 228 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492; (1985) 59 ALR 529 Rosniak v GIO [1997] 41 NSWLR 608 State of NSW v Gee (aka Michaels) [2002] NSWCA 326 State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536 Category: Principal judgment Parties: Christian Hall (Plaintiff) Li Yang (Defendant) Representation: Mr A Lidden SC with Ms E Welsh (Plaintiff) Mr J Catsanos (Defendant) Walter T Lyubicic & Associates (Plaintiff) Moray & Agnew (Defendant) File Number(s): 2012/214880 Publication restriction: None