Nievas v Mohammed [2017] NSWDC 168

District Court New South Wales

Medium Neutral Citation: Nievas v Mohammed [2017] NSWDC 168 Hearing dates: 1, 2 and 5 June 2017 Date of orders: 29 June 2017 Decision date: 29 June 2017 Jurisdiction: Civil Before: Wilson SC DCJ Decision: 1. Judgment for the plaintiff in the sum of $89,760.12. 2. The defendant to pay the plaintiff's costs of the proceedings. 3. That the parties have leave to approach the Court within 14 days to vary the order in respect of costs, if necessary. 4. That the Exhibits be returned. Catchwords: MOTOR VEHICLE ACCIDENT – CONTRIBUTORY NEGLIGENCE – ASSESSMENT OF DAMAGES Legislation Cited: Civil Liability Act 2002 Motor Accidents Compensation Act 1999 Cases Cited: Sibley v Kais [1967] 118 CLR 424 Stocks v Baldwin (1996) 24 MVR 416 Trompp v Liddle (1941) 41 SR (NSW) 108 Category: Principal judgment Parties: Omar Nievas (Plaintiff) Adam Mohammed (Defendant) Representation: Counsel: Ms L Goodchild with Mr B Tzatzagos (Plaintiff) Mr J Guihot (Defendant)

Solicitors: Stephen Cahill, Brydens Lawyers Pty Ltd (Plaintiff) Frances Allen, Moray & Agnew (Defendant) File Number(s): 2016/297595 Publication restriction: None

Judgment Introduction The plaintiff The Claim The accident Facts not in dispute Facts in dispute The evidence on liability The plaintiff's evidence The defendant's evidence Demeanour and Reliability Findings on Liability Whether the plaintiff was riding his bicycle on the footpath adjacent to Elizabeth Drive or in lane 1 The point at which the plaintiff saw the defendant's vehicle The point at which the defendant saw the plaintiff's bicycle The plaintiff's response to the presence of the defendant's vehicle The defendant's response to the presence of the plaintiff's bicycle The speed of the defendant's vehicle prior to impact The speed of the bicycle prior to impact The rest position of the plaintiff's person The rest position of the plaintiff's bicycle Whether the motor fitted to the bicycle was running at the time of the accident Contributory negligence Failure to keep a proper lookout Failure to approach and cross the intersection with caution Riding a push bike on the footpath in breach of road rule 2014 Moving into the path of the defendant's vehicle Failure to take reasonable care for his own safety Entering the intersection at an excessive speed in the circumstances Analysis The Evidence re Quantum The plaintiff's evidence The evidence of Daniella Magro The plaintiff's medical reports – Exhibit C Defendant's medical reports – Exhibit 1 The plaintiff's claim and the defendant's position Assessment of damages Reliability of the plaintiff's evidence re damages Past economic loss Past loss of superannuation benefits Future economic loss Past out of pocket expenses Future out of pocket expenses Past domestic assistance ORDERS