Clancy v The Nominal Defendant [2023] NSWDC 186

Clancy v The Nominal Defendant [2023] NSWDC 186

The defendant was not permitted to call or cross-examine Associate Professor Haertsch because the proposed further evidence was not shown to be contained in his report, exceptional circumstances were not established under r 31.28, the late attempt to cross-examine after admission of the report was inadequately explained, and allowing it would prejudice the plaintiff and be contrary to the just, quick and cheap disposal of the proceedings. On the merits, the Court accepted the plaintiff as reliable, found the motor accident caused the Bennett's fracture and other continuing physical and psychiatric injuries, and found those injuries significantly impaired his capacity to work as a...

Jurisdiction
Australia
Judgment Date
09 May 2023
Procedural Posture
Civil Motor Accident Damages Claim Under the Motor Accident Injuries Act 2017 (nsw) / Principal Judgment After Hearing; Liability Admitted and Damages Assessed, With Short Minutes to Be Brought in
Outcome
The plaintiff succeeded on the assessment of damages, subject to final calculations and short minutes. The defendant's application to examine or cross-examine Associate Professor Haertsch was refused.
Legal Topics
['measure of Damages' 'past Economic Loss' 'future Economic Loss' 'non Economic Loss' 'nominal Defendant Claim' 'expert Evidence' 'cross Examination of Expert Witnesses' 'mitigation by Surgery' 'medical Causation' 'residual Earning Capacity']
['traffic Law and Transport' 'motor Accident Legislation' 'personal Injury Damages' 'civil Procedure' 'evidence'] ['measure of Damages' 'past Economic Loss' 'future Economic Loss' 'non Economic Loss' 'nominal Defendant Claim' 'expert Evidence' 'cross Examination of Expert Witnesses' 'mitigation by Surgery' 'medical Causation' 'residual Earning Capacity']

Case Brief

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Procedural Posture

Civil Motor Accident Damages Claim Under the Motor Accident Injuries Act 2017 (nsw) / Principal Judgment After Hearing; Liability Admitted and Damages Assessed, With Short Minutes to Be Brought in

Legal Issues

  1. 1 ['Whether the defendant should be permitted to call or cross-examine Associate Professor Haertsch to give further expert evidence without the required notice or without the substance of the evidence being contained in the served report.' "What injuries were caused by the motor accident, including whether the plaintiff's Bennett's fracture was caused by the accident or by a prior March 2018 incident." "Whether the plaintiff's evidence as to symptoms, medical history and earning capacity should be accepted." 'How damages for non-economic loss should be assessed under the Motor Accident Injuries Act 2017 (NSW).' "How past and future economic loss should be assessed, including the plaintiff's notional income but for the accident and residual earning capacity."]

Ratio Decidendi

The defendant was not permitted to call or cross-examine Associate Professor Haertsch because the proposed further evidence was not shown to be contained in his report, exceptional circumstances were not established under r 31.28, the late attempt to cross-examine after admission of the report was inadequately explained, and allowing it would prejudice the plaintiff and be contrary to the just, quick and cheap disposal of the proceedings. On the merits, the Court accepted the plaintiff as reliable, found the motor accident caused the Bennett's fracture and other continuing physical and psychiatric injuries, and found those injuries significantly impaired his capacity to work as a...

Court Disposition

The plaintiff succeeded on the assessment of damages, subject to final calculations and short minutes. The defendant's application to examine or cross-examine Associate Professor Haertsch was refused.

Orders

  • ['The plaintiff is entitled to $275,000 by way of damages for non-economic loss.' 'The plaintiff is entitled to damages for past economic loss to be calculated in accordance with paragraphs 206 and 207.' 'The plaintiff is entitled to damages for future economic loss to be calculated in accordance with paragraphs 238...