Brooker v Allianz Australia Insurance Limited [2018] NSWDC 248

District Court New South Wales

Medium Neutral Citation: Brooker v Allianz Australia Insurance Limited [2018] NSWDC 248 Hearing dates: 31 August 2018 Date of orders: 07 September 2018 Decision date: 07 September 2018 Jurisdiction: Civil Before: Russell SC DCJ Decision: (1) Dismiss the defendant's motion filed on 20 July 2018. (2) Order the defendant to pay the plaintiff's costs of the motion. Catchwords: MOTOR ACCIDENTS – blameless motor accident – tyre blowout caused driver to lose control – psychiatric injury but no physical injury alleged MOTOR ACCIDENTS – blameless motor accident – no recovery if motor accident caused by an act or omission of the driver – no evidence of that at this interlocutory stage – application to dismiss or strike out pleading refused MOTOR ACCIDENTS – damages for psychiatric injury where no physical injury alleged – application of Part 3 of Civil Liability Act 2002 dealing with mental harm – distinction between injury arising from plaintiff's fear for own safety and injury arising from fear for safety of another person – bystander cases – claim for nervous shock arising from fear for own safety preserved by s 29 Civil Liability Act 2002 – claim in bystander case governed by s 30 Civil Liability Act 2002 – application to dismiss or strike out pleading refused Legislation Cited: Civil Liability Act 2002 Civil Liability Amendment (Personal Responsibility) Act 2002 Law Reform (Miscellaneous Provisions) Act 1944 Motor Accidents Compensation Act 1999 Cases Cited: Connaughton v Pacific Rail Engineering Pty Limited [2015] NSWDC 89 Hassain v Mirdha [2015] NSWDC 108 Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222 Whitfield v Melenewycz [2016] NSWCA 235 Category: Procedural and other rulings Parties: Kyle Brooker (plaintiff) Allianz Australia Insurance Limited (defendant) Representation: Counsel: J Wilson (plaintiff) W Reynolds (defendant)