PUBLISHED 27 Mar 2013

The Plaintiff in this matter was a pedestrian who at the time of impact was engaged in work. The Plaintiff was crossing a busy road having just purchased a coffee. As the traffic signal was red, the Plaintiff commenced to walk across the road when he was struck by the vehicle driven by the Defendant in October 2009.

The Plaintiff sustained a significant injury to his left leg in the form of a compound fracture of the left tibia and fibula which required the insertion of a rod and screws. He also sustained meniscal tear and cruciate ligament laxity of the left knee, fractured ribs, scarring, aggravation of a pre-existing neck injury and depression. As a result of the significant injury to his left leg, the Plaintiff developed neural damage.

As liability was denied for this accident, proceedings were commenced in the Sydney District Court in September 2011. An investigative report was also obtained from a consultant engineer specialising in Motor Vehicle Claims. The report confirmed that the driver of the vehicle was required to anticipate hazards and manage the risk of a collision by remaining vigilant and responding quickly to hazards. Furthermore, as the Plaintiff was wearing a bright fluorescent shirt the Defendant should have observed the Plaintiff and avoided colliding with him.

Medical reports were obtained from an Orthopaedic Specialist, a Neurosurgeon and a Psychiatrist. The reports confirmed that the injuries sustained by the Plaintiff exceeded the 10% whole person impairment imposed by the Legislation. In the event that the Defendant did not agree that the injuries exceeded the threshold the matter would have been referred to the Motor Accidents Assessment Service for the independent assessment of whole person impairment.

As a result of the subject accident, the Plaintiff did not return to work and was declared unfit for same.

Given that there was also a dual Workers Compensation Claim, which subsequently resolved, there would be a payback owing to the Workers Compensation Insurer in the event that the Motor Vehicle Claim resolved. This is referred to as a Section 151Z Recovery.  The amount of recovery in this matter was $142,000.00.

A claim was made for non-economic loss, past and future out of pocket expenses, past and future economic loss, diminution in earning capacity and past and future domestic care and assistance.

The matter was ultimately subjected to an Informal Settlement Conference however did not resolve on that occasion. Negotiations continued and the matter ultimately settled for $360,000.00 all inclusive. The Workers Compensation Insurer agreed to accept a reduction of $60,000.00 with respect to their right to recovery.

There had also been an agreement between the Plaintiff and the Defendant that an amount of 60% would apply for Contributory Negligence. Accordingly, the settlement was an excellent result in the circumstances.

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