Bushby v The Nominal Defendant [2019] NSWDC 733

Procedural Posture

Civil Claim for Damages for Personal Injuries Arising From a Motor Vehicle Accident Under the Motor Accidents Compensation Act 1999 (nsw) / Principal Judgment After Final Hearing on Causation and Assessment of Damages

Legal Issues

1. 1 ["Whether the plaintiff's ongoing right ankle injury, dystonia, pain and psychiatric condition were caused by the motor vehicle accident." 'Whether the plaintiff had ongoing complex regional pain syndrome type 1 caused by the accident.' 'What damages should be awarded for past and future out-of-pocket expenses, economic loss, domestic assistance, childcare assistance and future loss of earning capacity.' 'How agreed contributory negligence should be reflected in the final orders.']

Ratio Decidendi

The plaintiff proved that the motor vehicle accident caused an inversion injury of the right ankle and hindfoot, intermittent inversion dystonia, continuing serious ankle and leg pain, and a chronic pain disorder, but did not prove a current complex regional pain syndrome type 1. The Court rejected Dr Anthony Smith's opinion that the plaintiff was manufacturing his condition and preferred the plaintiff's evidence and the substantial body of medical evidence supporting accident-related ankle injury and dystonia. On that basis, the plaintiff was entitled to damages for agreed past expenses and past economic loss, future treatment and equipment expenses, lawn mowing, qualifying periods of...

Court Disposition

Judgment for the plaintiff, with damages to be reflected in short minutes after calculation of specified items and the agreed deduction for contributory negligence.

Orders

• ['Judgment for the plaintiff.' "The defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed." 'Liberty to the parties to seek a different costs order to (2) above within 14 days.' 'The parties are to bring in agreed short minutes of order reflecting the reasons for decision and the agreed...