Westerman v Roads and Maritime Services [2016] NSWDC 52

District Court New South Wales

Medium Neutral Citation: Westerman v Roads and Maritime Services [2016] NSWDC 52 Hearing dates: 11 and 12 February 2016 Date of orders: 15 February 2016 Decision date: 15 February 2016 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Judgment for the plaintiff against the defendant in the sum of $38,887.50. (2) The costs of the proceedings be paid: (a) up to and including 20 November 2015 by the defendant; and (b) from and including 21 November 2015 by the plaintiff. Catchwords: NEGLIGENCE – damages – assessment – pedestrian – pot hole in road – foot injury – causation – previous foot injuries – contributory negligence Legislation Cited: Civil Liability Act 2002, s 16 Uniform Civil Procedure Rules 2005, r 42.15 Category: Principal judgment Parties: Lenore Westerman (plaintiff) Roads and Maritime Services (defendant) Representation: Counsel: Mr T Boyd (plaintiff) Mr M Hutchings (defendant)

Solicitors: Herbert Weller Solicitor (plaintiff) Crown Solicitor's Office (defendant) File Number(s): 2014/287769 Publication restriction: None

Judgment

1) INTRODUCTION 1. Lenore Westerman fell and suffered fractures in her feet when stepping into an unseen pothole while crossing a road. She sues Roads and Maritime Services ("RMS") for damages for negligence. In its defence, RMS admits it breached its duty of care. As a result, these proceedings became an assessment of Mrs Westerman's damages, including questions of causation and contributory negligence. 2. The parties each prepared a statement of issues; both listed five issues but there the similarity ended. Adopting and adjusting both lists indicates the following issues: 1. the existence and degree of any contributory negligence; 2. the appropriate award for non-economic loss, having regard to the cause of her symptoms and s 16 of the Civil Liability Act 2002; 3. the appropriate award for economic loss considering any loss of capacity of Mrs Westerman to work as a facility manager; 4. whether and to what extent Mrs Westerman is entitled to an award for "commercial care"; 5. whether and to what extent Mrs Westerman is entitled to an award for future treatment having regard to her need for orthotics; and 6. the appropriate award of damages.