Glen Ornelas v The Nominal Defendant [2014] NSWDC 83

District Court New South Wales

Medium Neutral Citation: Glen Ornelas v The Nominal Defendant [2014] NSWDC 83 Hearing dates: 10, 11, 12 March 2014 Decision date: 21 May 2014 Before: Judge MJ Finnane QC Decision: See paragraphs [37] to [45] Catchwords: PERSONAL INJURY - accident - motorcycle - fracture - femur - pain - operation DAMAGES - non-economic loss - economic loss - past and future care - domestic assistance - superannuation Category: Principal judgment Parties: Glen Ornelas (Plaintiff) The Nominal Defendant (Defendant) Representation: Mr K Andrews (Plaintiff) Mr J Turnbull (defendant) NSW Compensation Lawyers (Plaintiff) Holman Webb (Defendant) File Number(s): 2012/220461

Judgment 1The plaintiff sues the defendant for the damages arising out of an accident on 12 April 2010 when he was riding a motorcycle and claims that an unidentified vehicle approaching him in the opposite direction caused him to change direction, with the result that he lost control of his motorcycle which slid across the road and this resulted in his injuries. 2The defendant appears because it is alleged that the motor vehicle that caused the plaintiff to change direction was one that was unidentified. Police were called immediately following the accident and there is no claim that there was a failure of the plaintiff to make due search enquiry to establish the identity of the driver of the motor vehicle. 3The issues really are whether the accident happened as the plaintiff claimed or whether the accident happened because the plaintiff lost control of his motorcycle and has made a false claim about the accident being caused by an unidentified vehicle. 4There is also a dispute between the parties about the seriousness of the plaintiff's injuries. The defendant does not dispute that the plaintiff suffered serious physical injury, but does dispute that the plaintiff is still disabled as a result of the injuries suffered by him. 5Much depends upon the credibility of the plaintiff and supporting witness, to determine the cause of the accident. As far as disability is concerned, the plaintiff is a critical witness and is supported by the evidence of his wife. He relies also on medical evidence. 6As will become apparent from reading of this judgment, I accept that the plaintiff has given truthful evidence about the circumstances of the accident and I accept that he was disabled by injury caused in this accident and that he suffered serious physical consequences. I can accept that for a period of six months or so after the accident he was seriously disabled, was not able to walk easily and needed others to assist him to do household tasks. I am of the view that he has needed some lesser assistance since then and this need will continue indefinitely.