Isho v Skupien [2014] NSWDC 115

District Court New South Wales

Medium Neutral Citation: Isho v Skupien [2014] NSWDC 115 Decision date: 12 May 2014 Before: Cogswell SC DCJ Decision: Judgment for the plaintiff in the sum of $25,613.00 Catchwords: TORTS - Negligence - contributory negligence - road accident - collision between car and bicycle - plaintiff crossed on bicycle against red light - apportionment of liability - plaintiff bears 65% responsibility - standard of proof - conflicting medical evidence - injuries assessed on balance of probabilities - more weight given to plaintiff's treating doctors' diagnoses and opinions on work capacity - damages - future economic loss - no objective evidence of pre-accident employment - minimal evidence of plaintiff realising full value of his earning capacity - limited future earning capacity. Legislation Cited: Civil Liability Act 2002 (NSW), s 13(1). Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9. Cases Cited: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALR 529. Turkmani v Visvalingam [2009] NSWCA 211. WB Jones Staircase & Handrail Pty Ltd v Richardson & Ors [2014] NSWCA 127. Category: Principal judgment Parties: Frank Isho (plaintiff) David Skupien (defendant) Representation: Counsel: R Petrie (plaintiff) W Fitzsimmons (defendant) Solicitors: David Legal (plaintiff) Moray & Agnew Lawyers (defendant) File Number(s): DC 2012/00067166

Judgment

Introduction 1This is a case about an accident at an intersection between a car and a bicycle. They collided with each other. The bike rider was injured, but fortunately not fatally or catastrophically. The driver acknowledges that he had some responsibility for the accident, but claims that it was mostly the fault of the bicycle rider. The bicycle rider says that the driver should be fully responsible for the accident. 2The bicycle rider is the plaintiff in the case and his name is Frank Isho. The car driver is the defendant in the case and his name is David Skupien. What I have to decide is whether Mr Isho should share any responsibility for the accident. I also have to decide whether to award Mr Isho any damages and, if so, what for and how much. 3Mr Richard Petrie of counsel appeared for Mr Isho and Mr William Fitzsimmons of counsel appeared for Mr Skupien. The case was conducted before me sitting in Sydney for some days commencing on 17 March 2014. I do not propose to recite the evidence except where it is relevant to my opinions and findings.