Miszkurka v Kidd [2017] NSWDC 177

Miszkurka v Kidd [2017] NSWDC 177

Because liability was not in issue, the court assessed damages. It accepted that the accident caused physical injury and some ongoing incapacity, particularly involving the left shoulder, but preferred medical evidence that did not establish a compensable psychiatric condition. The court found some loss of earning capacity, but because of the plaintiff's pre-existing injuries, disability pension, limited pre-accident earnings and imprecision in the evidence, awarded buffers for past and future economic loss. It accepted a reasonable need for domestic assistance, with limits for statutory threshold, ageing and pre-existing conditions. Damages were assessed at $398,517.00.

Jurisdiction
Australia
Judgment Date
07 July 2017
Procedural Posture
Civil Claim for Damages for Personal Injuries From a Motor Vehicle Accident / Assessment of Damages After Liability Was Not in Issue
Outcome
Judgment for the plaintiff in the sum of $398,517.00, with costs payable by the defendant.
Legal Topics
['assessment of Damages' 'non Economic Loss' 'economic Loss' 'out of Pocket Expenses' 'domestic Assistance' 'whole Person Impairment' 'pre Existing Conditions' 'future Vicissitudes']
['motor Vehicle Accident' 'personal Injury' 'damages'] ['assessment of Damages' 'non Economic Loss' 'economic Loss' 'out of Pocket Expenses' 'domestic Assistance' 'whole Person Impairment' 'pre Existing Conditions' 'future Vicissitudes']

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Procedural Posture

Civil Claim for Damages for Personal Injuries From a Motor Vehicle Accident / Assessment of Damages After Liability Was Not in Issue

Legal Issues

  1. 1 ['Whether the plaintiff was injured as a consequence of the subject accident' 'Whether those injuries gave rise to ongoing disabilities' "The plaintiff's earning capacity at the time of the subject accident" "Whether the plaintiff's earning capacity was affected by the subject accident" 'Whether any physical incapacity caused by the accident was likely to be productive of economic loss' 'The value to be ascribed to any loss of capacity' 'Whether the plaintiff had a reasonable need for domestic assistance arising from the subject accident' 'The extent to which damages should be discounted by reason of pre-existing conditions']

Ratio Decidendi

Because liability was not in issue, the court assessed damages. It accepted that the accident caused physical injury and some ongoing incapacity, particularly involving the left shoulder, but preferred medical evidence that did not establish a compensable psychiatric condition. The court found some loss of earning capacity, but because of the plaintiff's pre-existing injuries, disability pension, limited pre-accident earnings and imprecision in the evidence, awarded buffers for past and future economic loss. It accepted a reasonable need for domestic assistance, with limits for statutory threshold, ageing and pre-existing conditions. Damages were assessed at $398,517.00.

Court Disposition

Judgment for the plaintiff in the sum of $398,517.00, with costs payable by the defendant.

Orders

  • ['Judgment for the plaintiff in the sum of $398,517.00' "The defendant to pay the plaintiff's costs" 'Liberty to apply within 14 days to vary the cost order, if necessary' 'Exhibits to be returned forthwith']