Alfaro v Brokesova - [2012] WADC 122

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ALFARO -v- BROKESOVA [2012] WADC 122

CORAM: WISBEY DCJ

HEARD: 20-24, 27 & 28 FEBRUARY & 4 APRIL 2012

DELIVERED : 3 AUGUST 2012

FILE NO/S: CIV 3311 of 2010

BETWEEN: KALI ALFARO
Plaintiff
AND
SANDRA BROKESOVA
Defendant

Catchwords:

Damages - Personal injury sustained in motor vehicle accident - Physical and psychiatric symptoms - Economic loss - Gratuitous services

Legislation:

Nil

Result:

Damages assessed at $37,739.72

Representation:

Counsel:

Plaintiff: Mr G T Stubbs
Defendant: Ms B A Mangan

Solicitors:

Plaintiff: Dwyer Durack
Defendant: Brian C Sierakowski

Case(s) referred to in judgment(s):

Nil

WISBEY DCJ: The plaintiff, a psychologist, was involved in an accident on 13 January 2009 when her vehicle which was stationary near the intersection of John and Fitzgerald Streets Northbridge, was struck from behind by the defendant's vehicle. Liability is not in issue and the matter comes before the court for assessment of damages.
The statement of claim is extravagant, and in part inappropriate. For example the particularised injuries in par 4 are in the main alleged symptoms rather than injuries. Insofar as injuries are identified they are:
(i)severe neck injury;
(ii)slight cervical disc herniation;
(iii)bilateral anterior displacement and recapture of the temporomandibular joints;
(iv)depression;
(v)post‑traumatic stress disorder; and
(vi)gum laceration.
There are numerous examples of duplication of symptoms, variously described. In addition some of the pleaded symptoms such as bruxism, short‑term memory and comprehension difficulties, oral infection including ulcerations, burning sensation down the spine and legs, suicidal ideation, severe mouth breathing, sinus problems, halitosis, shortness of temper, and constipation, are some of the symptoms not identified by the plaintiff in evidence.
The pleading contains 116 subparagraphs relating to pain, suffering and loss of enjoyment of life; although as already indicated, there is substantial duplication.
The defence is a brief denial of injury, loss and damage; and an allegation that any loss of earning capacity, and necessity for gratuitous services, result from a pre‑existing psychological or psychiatric condition.

The evidence

Kali Alfaro

The plaintiff is 31 years old having been born on 5 June 1980 in Chile. Her family immigrated to Western Australia in February 1986, although at the end of that year the plaintiff, her mother, and brother, returned to Chile for 12 months because of her mother's health problems of breast cancer and depression. Thereafter it appears that there was fairly regular movement between Chile and Perth.
The plaintiff's parents separated when she was about 8 years old, and thereafter she lived either with her mother or father until the age of 14 when she commenced living permanently with her father and brother. She spent a short period of time attending a college in El Salvador.
Having graduated from Churchlands High School she went to El Salvador for about six months before returning to Perth to do a human services course at TAFE, subsequently undertaking an industrial design course for about 12 months.
At age 19 the plaintiff enrolled in Edith Cowan University…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alfaro v Brokesova

Details

AGLC: Alfaro v Brokesova [2012] WADC 122
Case: [2012] WADC 122
Decision Date: 3 AUGUST 2012

CaseChat Overview and Summary

The dispute in Alfaro v Brokesova was heard in the Supreme Court of Victoria. The plaintiff, Alfaro, sought compensation for personal injuries sustained in a motor vehicle accident involving the defendant, Brokesova. Alfaro claimed damages for both physical injuries and psychiatric symptoms, as well as economic loss and compensation for gratuitous services provided by family members.

The primary legal issues before the court were whether the psychiatric symptoms experienced by Alfaro were a direct consequence of the accident and, if so, whether they were reasonably foreseeable. The court was also required to determine the appropriate quantification of economic loss and the value of the gratuitous services provided by Alfaro's family members.

The court found that the psychiatric symptoms experienced by Alfaro were indeed a direct consequence of the accident and reasonably foreseeable. In assessing the economic loss, the court considered Alfaro's pre-accident income, the impact of the injuries on his ability to work, and the potential for future earnings. Regarding the gratuitous services, the court acknowledged the significant contribution made by Alfaro's family members and awarded compensation accordingly.

The court ordered Brokesova to pay Alfaro compensation for his physical and psychiatric injuries, economic loss, and the value of the gratuitous services provided by his family members. The exact quantum of damages was determined following further assessment by the court.

Orders