Benjamin Peter Fanelli by his next friend Tammy Fanelli v Rebecca Kelly Smith [2019] NSWDC 191

District Court New South Wales

Medium Neutral Citation: Benjamin Peter Fanelli by his next friend Tammy Fanelli v Rebecca Kelly Smith [2019] NSWDC 191 Hearing dates: 13 May 2019 Date of orders: 15 May 2019 Decision date: 15 May 2019 Jurisdiction: Civil Before: Wilson SC DCJ Decision: At [126] Catchwords: CIVIL – liability not in issue – assessment of damages – extent of pre-existing conditions in issue Legislation Cited: Civil Liability Act Civil Procedure Act 2005 Motor Accidents Compensation Act 1999 Cases Cited: Purkess v Crittenden (1965) 114 CLR 164 Watts v Rake (1960) 108 CLR 158 Texts Cited: None Category: Principal judgment Parties: Benjamin Peter Fanelli by his next friend Tammy Fanelli (Plaintiff) Rebecca Kelly Smith (Defendant) Representation: Counsel: Mr R de Meyrick (Plaintiff) Ms R Bianchi (Defendant)

Solicitors: CBD Law (Plaintiff) Moray & Agnew (Defendant) File Number(s): 2017/56167 Publication restriction: None

Introduction 1. The Plaintiff suffered injuries as the result of a very serious motor vehicle accident which occurred on 22 July 2015. The photographs tendered in the Plaintiff's case (Exhibit B) demonstrated that the accident caused substantial damage to both vehicles involved. 2. Although liability was not in issue at the hearing, it is worth noting that the accident followed the Defendant crossing onto the incorrect side of the road for a lengthy period of time, prior to the collision occurring. During that period, the Plaintiff, aged 11 years of age, was sitting in the front passenger seat of the vehicle driven by his mother. He witnessed the events leading up to the inevitable collision and was, understandably, concerned for his mother's welfare. 3. His mother, acting protectively of her children, steered her vehicle to the extreme left hand side of the road, in order for the brunt of the impact be suffered on the driver's side, in an effort to spare injury to the Plaintiff. Regrettably, injury was, however, suffered. 4. The Plaintiff was born on 27 November 2003 and is 15 years of age. He was not called to give evidence. In answer to the direct question from the Court, the Defendant conceded that it would not make any adverse comment about the Plaintiff's failure to give evidence. His mother gave evidence which was compelling.