Habib v McKenna [2015] NSWDC 106

District Court New South Wales

Medium Neutral Citation: Habib v McKenna [2015] NSWDC 106 Hearing dates: 20-25 April 2015; 27-29 April 2015 Date of orders: 07 May 2015 Decision date: 07 May 2015 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: Damages assessed at $1,030,301 plus funds management. Catchwords: Personal injury, brain damage to a 12 year old boy with pre-existing intellectual limitations. Legislation Cited: Motor Accidents Compensation Act 2009 Civil Liability Act 2002 Cases Cited: Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Mason v Demasi [2009] NSWCA 227 Category: Principal judgment Parties: Kenny Habib by his Tutor Manal Habib (Plaintiff) Patrick McKenna (First Defendant) Sam Habib (Second Defendant) Nominal Defendant (Third Defendant) Representation: Counsel: T Boyd (Plaintiff) K Rewell SC (First, Second and Third Defendants)

Solicitors: Cameron Gillingham Boyd (Plaintiff) Moray & Agnew (First, Second and Third Defendants) File Number(s): 2009/00336448 Publication restriction: No

Judgment 1. On 15 July 2006, the plaintiff then 12 years of age, was a rear seat passenger in a motor vehicle accident. He was injured. He alleges he has suffered significant damages arising from his injuries. 2. The plaintiff blames the defendants for the accident. They have accepted that their actions amounted to a breach of the duty of care that they owed to the plaintiff. They did allege that he had contributed to his injuries but this allegation was withdrawn towards the end of the hearing. 3. The action is governed by the Motor Accidents Compensation Act 2009 (the "MACA"). 4. The first defendant is Patrick McKenna, the second defendant is Sam Habib, and the third defendant is the Nominal Defendant. Their separate contributions to the plaintiff's injuries are not relevant. 5. The plaintiff's injuries were primarily to three parts of his body. He suffered an injury to his head caused by a gas cylinder that had been in the back of the station wagon vehicle in which he was a passenger. The cylinder was unrestrained and travelled forward striking the plaintiff's head. He suffered less serious injuries to his low back and left knee although the former did include some undisplaced fractures. 6. The plaintiff has claimed damages under the following heads: non-economic loss, past and future economic loss, past and future care and medical expenses. The defendants conceded that the plaintiff had passed the 10% threshold imposed by Section 131 of the MACA in respect of non-economic loss. 7. In relation to all of the plaintiff's injuries the defendants say that they are not as significant as he alleges. The defendants' position is that by about 2009 the plaintiff had fully recovered from his low back and left knee injuries and by this time he had no need for any assistance. The defendants also say that the effects of the plaintiff's brain injury (consequent upon his head injury) are at best mild and generally restricted to some behavioural difficulties. None of these injuries, say the defendants, prevent him from working or living independently. 8. Accordingly the parties were well apart in their respective submissions on damages. The only agreed figure was for past medical expenses.