Carvajal v Lamba [2019] NSWDC 284

District Court New South Wales

Medium Neutral Citation: Carvajal v Lamba [2019] NSWDC 284 Hearing dates: 24, 25, 26 June 2019 Date of orders: 28 June 2019 Decision date: 28 June 2019 Jurisdiction: Civil Before: Russell SC DCJ Decision: (1) Judgment for the plaintiff against the defendant for $7,013.36. (2) Order the defendant to pay the plaintiff's costs. (3) Grant leave to the parties to approach my Associate within 7 days if either party seeks a different costs order. Catchwords: TRAFFIC LAW AND TRANSPORT – motor accident legislation – liability – plaintiff injured as a result of motor vehicle accident – whether plaintiff's or defendant's version of events is accepted

TORTS – negligence – damages – non-economic loss – out-of-pocket expenses – economic loss – gratuitous care – Motor Accidents Compensation Act 1999

EVIDENCE – credibility – plaintiff and defendant Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) Category: Principal judgment Parties: Maria Alejandra Carvajal (Plaintiff) Tanu Lamba (Defendant) Representation: Counsel: K Balendra (Plaintiff) J Lucy (Defendant)

Solicitors: Harrow Legal (Plaintiff) Hall & Wilcox (Defendant) File Number(s): 2018/195978

Judgment

Introduction 1. On 28 July 2016 the plaintiff was the driver of a motor vehicle involved in an accident on The Horsley Drive at Smithfield. There was a collision with a car driven by the defendant. There are two radically different versions of the accident. They cannot stand together. The plaintiff bears the onus of proving her case on the balance of probabilities. 2. The plaintiff's version is that the defendant swerved into the side of her vehicle, causing the plaintiff to lose control, mount a kerb and strike a vehicle parked on the nature strip. 3. The defendant's version is that the plaintiff was travelling behind the defendant, and ran into the rear of the defendant's vehicle, which in turn caused the plaintiff to lose control of her vehicle. 4. Liability and damages were put in issue by the defendant. 5. By a Statement Of Particulars filed on 25 June 2018 the plaintiff claimed injuries to the left shoulder, left elbow, and left knee. She also claimed to have suffered a psychological injury. Later particulars were supplied by a letter dated 31 January 2019 (PX 2). The plaintiff claimed to have suffered soft tissue injuries to her neck and shoulders, injuries to her upper and lower back with pain radiating into the left leg, injuries to both knees, and a post-traumatic stress disorder. 6. The plaintiff claimed damages for non-economic loss, out-of-pocket expenses, past economic loss totalling $6,400, future diminution of earning capacity, and past and future domestic assistance.