Kelly Rutland v Robert De Marco [2017] NSWDC 140

District Court New South Wales

Medium Neutral Citation: Kelly Rutland v Robert De Marco [2017] NSWDC 140 Hearing dates: 29 – 31 May 2017 Decision date: 09 June 2017 Jurisdiction: Civil Before: Mahony SC DCJ Decision: Verdict and judgment for the plaintiff. For Orders see [146] Catchwords: Nervous shock; mitigation of damages. Legislation Cited: Civil Liability Act 2002 Civil Procedure Act 2005 Motor Accidents Compensation Act 1999 Cases Cited: Allianz Australia Insurance Limited v Rutland [2015] NSWCA 328 Bellingen Shire Council v Colavon Pty Limited [2012] NSWCA 34 ECS Group (Australia) Pty Limited v Hobby [2014] NSWCA 193 Fazlic v Milingimby Community Inc [1982] HCA 3; 150 CLR 345 Kallouf v Middis [2008] NSWCA 61 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Nominal Defendant v Lane [2004] NSWCA 405 Sampco Pty Limited v Wurth [2015] NSWCA 117 Category: Principal judgment Parties: Kelly Rutland (Plaintiff) Robert De Marco (Defendant) Representation: Counsel: I Roberts SC with M Inglis (Plaintiff) D Hanna (Defendant)

Solicitors: Commins & Hendricks Hall & Wilcox Solictors File Number(s): 12/286449 Publication restriction: Nil

Judgment

Introduction 1. The plaintiff claims damages for psychological injury she suffered as a result of the death of her sister, Rebecca Rutland, in a motor vehicle accident in Wagga Wagga on 24 April 2009. It was not in dispute that the plaintiff suffered a recognised psychiatric illness, as required by s 31 of the Civil Liability Act 2002 ("CLA"). The trial proceeded by way of an assessment of damages, however, those damages did not include damages for non-economic loss as the degree of whole person impairment of the plaintiff as assessed by a Review Panel on 30 March 2016, was not greater than 10%. Thus, pursuant to s 131 of the Motor Accidents Compensation Act 1999 ("MACA"), no damages could be awarded for non-economic loss. 2. It should be noted that the administration of the plaintiff's claim, and in particular, the assessment of her whole person impairment, had taken a tortuous route. Following an MAS assessment by Dr Alan Jagar on 29 October 2013, the plaintiff had been assessed as having a whole person impairment of 14%. Following assessment by a Review Panel on 14 March 2014, that assessment was revoked and the plaintiff was assessed as having a WPI of less than 10%. The plaintiff appealed that assessment in the Supreme Court where she was successful in having the Review Panel Certificate set aside, and the matter referred to a new Review Panel for assessment. The defendant then appealed to the Court of Appeal, which appeal was dismissed on 20 October 2015 (see Allianz Australia Insurance Limited v Rutland [2015] NSWCA 328). A further Review Panel assessed the plaintiff's WPI on 30 March 2016 as 6%. 3. The plaintiff's claim for damages was therefore confined to the following heads of damage: 1. Past economic loss 2. Future economic loss 3. Past treatment expenses 4. Future treatment expenses 5. Past care and assistance, and 6. Future paid assistance. 1. There was no real issue between the parties in respect of past economic loss, past treatment expenses and future treatment expenses. 2. This judgment has been prepared without the benefit of a transcript. The evidence, however, was of fairly narrow compass. The summary below encompasses my findings of facts, as none of the history is in dispute. The parties diverge on the assessment of damages on the remaining heads of damage, and whether the plaintiff has failed to mitigate her damages.