Moubarak v Le [2019] NSWDC 123

District Court New South Wales

Medium Neutral Citation: Moubarak v Le [2019] NSWDC 123 Hearing dates: 8 April 2019, 9 April 2019 Date of orders: 15 April 2019 Decision date: 15 April 2019 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph 167. Catchwords: Motor accidents - assessment of damages – past out of pocket expenses – past economic loss – causal connection – future out of pocket expenses – future loss of earning capacity – future domestic assistance.

Evidence – whether Jones v Dunkel inference should be drawn from failure to call former employer. Legislation Cited: Motor Accidents Compensation Act 1999 Civil Procedure Act 2005 (NSW) Motor Accidents Compensation Regulation 2015 (NSW) Evidence Act 1995 (NSW) Cases Cited: Jones v Dunkel (1959) 101 CLR 298 Golden Eagle International Trading Pty Ltd v Zhang (2007) 229 CLR 498 Category: Principal judgment Parties: Christopher Moubarak (Plaintiff) Brian George English (First Defendant) Gia My Le (Second Defendant) Representation: Counsel: Mr D-L Del Monte (Plaintiff) Mr B Wilson (First and Second Defendant)

Solicitors: Lionheart Lawyers (Plaintiff) Hall and Wilcox (First and Second Defendant) File Number(s): 2017/256292 Publication restriction: Nil

Judgment

Introduction 1. On 23 August 2014 the plaintiff was a front seat passenger in a vehicle driven by the first defendant along Parramatta Road, near Petersham. The vehicle was owned by the second defendant. The vehicle was on its way to a wedding. The plaintiff was the groom's 'Best Man'. Befitting the celebratory occasion, the vehicle was a white manual 1951 Jaguar. What it possessed in style, however, the vehicle lacked in modern functionality. There were no seat belts and no driver or passenger safety bags. At about 1:45 pm the brakes of the Jaguar failed and the vehicle collided with the rear of a stationary vehicle (a Honda Civic Sedan). The collision was quite dramatic – it caused a 6-car pile-up on a notoriously busy road in the metropolitan part of Sydney. 2. The plaintiff claims that he suffered a range of personal injuries and disabilities as a result of the collision. The police and ambulance were called. The plaintiff brings this proceeding to claim damages against the driver and the owner of the 1951 Jaguar vehicle. 3. Liability has been admitted; which means that the issues before me concern only the assessment of damages. 4. The schedule of damages which the plaintiff's counsel handed up on the first day of the hearing indicates a modest claim. What is sought by the plaintiff is the recovery of his past out-of-pocket expenses (quantified at $7,318.30), past economic loss, future out of pocket expenses, a buffer for future economic loss and future care. In all, the aggregate of the claim is just over $64,000. 5. For its part, the defendants essentially deny that the plaintiff has any residual injury or disabilities as a result of the motor vehicle accident. The defendants go further, in fact, and say that the plaintiff has grossly exaggerated the extent of his injuries and current complaints of symptoms. They say he is not entitled to anything for the future and vigorously dispute the quantum of the claims of past out-of-pocket expenses and past economic loss.