De Ceglie v Timosevski [2018] NSWDC 196

District Court New South Wales

Medium Neutral Citation: De Ceglie v Timosevski [2018] NSWDC 196 Hearing dates: 10, 11 July 2018 Date of orders: 19 July 2018 Decision date: 19 July 2018 Jurisdiction: Civil Before: Russell SC DCJ Decision: (1) Judgment for the plaintiff against the defendant for $107,458.35. (2) Order the defendant to pay the plaintiff's costs. (3) Grant liberty to the parties to approach my Associate within 7 days if any different costs order is sought by either party. Catchwords: NEGLIGENCE – accident involving car and motor scooter

LIABILITY – resolution of conflicting versions of accident – inconsistency between oral evidence and statement to police – most probable explanation for accident

CONTRIBUTORY NEGLIGENCE – standard of care that of a reasonable person – degree of departure, if any, from standard of care

DAMAGES – future loss of earning capacity Legislation Cited: Civil Liability Act 2002 Motor Accidents Compensation Act 1999 Category: Principal judgment Parties: Antonio Paul De Ceglie (plaintiff) Mitchell John Timosevski (defendant) Representation: Counsel: P Menzies QC with W Ward (plaintiff) R Perla (defendant)

Solicitors: J A Buda & Associates (plaintiff) Moray & Agnew (defendant) File Number(s): 2017/132436

Judgment

Introduction 1. The plaintiff was injured when he fell from a Vespa motor scooter in Dalhousie Street, Haberfield on 20 March 2015. These proceedings were brought by the plaintiff seeking damages for the alleged negligence of the defendant. 2. Liability is in issue. The Civil Liability Act 2002 is relevant to questions of liability. Quantum is in issue. The Motor Accidents Compensation Act 1999 is relevant to the calculation of damages. The plaintiff's case was that he was riding along Dalhousie Street when the defendant's utility vehicle, which had been parked on the left-hand side of the road, turned directly across his path. The defendant's version was that no such manoeuvre was performed. The defendant's case was that the utility was stationary with its indicator on, waiting to make a right-hand turn, when the plaintiff approached from the rear and fell off his scooter. 3. As counsel for the defendant correctly put it, this is a case where the court must make a finding about whether the plaintiff's version, or the defendant's version, is accepted. There is really no room for finding that the accident happened in some way which is a combination of the two cases.