Alan Lloyd Garvie v Rodney William Bulmer [2015] NSWDC 200

District Court New South Wales

Medium Neutral Citation: Alan Lloyd Garvie v Rodney William Bulmer [2015] NSWDC 200 Hearing dates: 26-28 August 2015 Decision date: 11 September 2015 Jurisdiction: Civil Before: Mahony SC DCJ Decision: Verdict and judgment for the plaintiff. For Orders see [132] Catchwords: Assessment of damages Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) ss 3, 126 and 131 Cases Cited: Knight v Government Insurance Office of New South Wales [1995] NSWCA 246 McConachie (t/as Willancorah Pastoral Co) v Pack [2004] NSWCA 148 Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 Miller v Galderisi [2009] NSWCA 353 Varga v Galea [2011] NSWCA 76 Category: Principal judgment Parties: Alan Lloyd Garvie (Plaintiff) Rodney William Bulmer (Defendant) Representation: Counsel: A Stone (Plaintiff) C Allan (Defendant)

Solicitors: Maurice Blackburn Lawyers (Plaintiff) Grant Galvin, Hall & Wilcox (Defendant) File Number(s): 2014/23931 Publication restriction: Nil

Judgment

The plaintiff's claim 1. The plaintiff claims damages for injuries suffered by him in a traffic accident on 20 April 2010. In the early hours of the morning, the plaintiff was driving a semi-trailer with a B-Double tanker in a northerly direction on the Hume Highway, just south of Woomargama in the State of New South Wales, when a similar vehicle being driven by the defendant, passed onto the incorrect side of the road and collided with the plaintiff's vehicle, causing it to leave the road and roll onto the passenger side. It was a heavy impact and the plaintiff suffered serious injuries as outlined below. 2. The defendant admitted liability for the plaintiff's injuries and the hearing proceeded as an assessment of damages on 26, 27 and 28 August 2015. 3. The plaintiff had suffered previous injuries, principally to his lower back, right knee and right shoulder, and had undergone surgical procedures to his knee and shoulder between 2006 and 2008. He had returned to work as an interstate tanker driver approximately 12 months prior to the subject accident with work restrictions limiting him to lifting no more than 10kg, and not lifting above shoulder height. This meant that he had restrictions in loading and unloading, and carrying out mechanical repairs which mainly involved changing tyres. He was otherwise able to carry out the duties of an interstate tanker driver. 4. The plaintiff claimed the following heads of damage: non-economic loss, treatment and future treatment expenses, past wage loss and future economic loss, together with past and future losses of superannuation entitlements. He also makes a claim for gratuitous domestic care and assistance provided to him following the accident, and paid domestic assistance into the future. 5. The dispute between the parties concerned the ongoing effect of the plaintiff's pre-accident injuries and their treatment upon him, and the impact of any ongoing disability of those injuries on the assessment of each of the heads of damages referred to above. 6. It was not in dispute that the plaintiff was entitled to damages for non-economic loss, having been assessed by a review panel pursuant to the Medical Assessment Service ('MAS') process as having a whole person impairment ('WPI') of 19 per cent, and thereby satisfying the threshold in s 131 of the Motor Accidents Compensation Act 1999 (NSW) ('MACA').