Westerman v Roads and Maritime Services [2016] NSWDC 52

Procedural Posture

Civil Negligence Claim / Judgment After Damages Assessment

Legal Issues

1. 1 ['Was the plaintiff contributorily negligent in failing to keep a proper lookout?' 'What is the appropriate award for non-economic loss under the Civil Liability Act 2002, s 16?' 'What is the appropriate award for economic loss considering the plaintiff’s loss of capacity to work as a facility manager?' 'Is the plaintiff entitled to an award for commercial care?' 'Is the plaintiff entitled to an award for future treatment, including orthotics?']

Ratio Decidendi

The plaintiff was not contributorily negligent as the failure to see the pothole in the wet, dark conditions was not unreasonable and there was insufficient evidence to establish a lack of reasonable care. The impact of earlier injuries and ageing was a predominant cause of ongoing symptoms, but the fall was not entirely unrelated; thus, non-economic loss was assessed at 4.5% of the maximum amount. Economic loss was only nominal as evidence did not support loss of capacity for higher earnings as a facility manager. No damages were awarded for commercial care (as assistance pre-dated the fall). Damages for future medical care were allowed on a limited basis. Judgment for the plaintiff for...

Court Disposition

Judgment for the plaintiff for damages.

Orders

• ['Judgment for the plaintiff against the defendant in the sum of $38,887.50.' 'The costs of proceedings up to and including 20 November 2015 to be paid by the defendant.' 'The costs of proceedings from and including 21 November 2015 to be paid by the plaintiff.']