Andromedas v Truong - [2016] NSWDC 330

District Court

New South Wales

Medium Neutral Citation: Andromedas v Truong [2016] NSWDC 330
Hearing dates: 14, 15, 16, 17 and 18 November 2016
Date of orders: 21 November 2016
Decision date: 21 November 2016
Jurisdiction: Civil
Before: P Taylor SC DCJ
Decision:
See paragraphs 58 and 61.

Catchwords: DAMAGES – earlier work injury – unable to work – subsequent motor vehicle accident – return to work – aggravation of existing spinal issue – domestic care – costs
Legislation Cited: Uniform Civil Procedure Rules 2005, r 42.35
Cases Cited: Graham v Baker (1961) 106 CLR 340
Morvatjou v Moradkhani [2013] NSWCA 157
Category: Principal judgment
Parties: Angela Andromedas (plaintiff)
Kien Hue Truong (defendant)
Representation:
Counsel:
Mr C T Barry and Mr J Trainor (plaintiff)
Mr W Fitzsimmons (defendant)
Solicitors:
Gajic Lawyers (plaintiff)
Moray & Agnew (defendant)

File Number(s): 2015/178648
Publication restriction: None

Judgment

On 21 July 2010, Angela Andromedas was in slow moving, heavy traffic when a car collided with the rear of her vehicle. She claims damages: past and future economic loss, including lost superannuation; past and future domestic care and assistance; and past and future medical costs. No claim is made for non-economic loss as the whole person impairment threshold has not been met. Liability was not in issue.
The primary issue in the proceedings is the extent to which Ms Andromedas suffered injury and ongoing disabilities as a result of the collision. The matter is complicated by injuries and disabilities Ms Andromedas sustained or may have sustained in a work accident about nine months prior to the motor vehicle accident, and, by the circumstance that Ms Andromedas returned to work for about three to four months starting about seven months after the motor vehicle accident.
Oral evidence was given by Ms Andromedas and two female friends, Nancy Haidar and Anne Bradbury.

MS ANDROMEDAS' TESTIMONY

Ms Andromedas gave evidence that in about September 2009 she was working as a security guard when she assisted other employees to collect boxes of juice and "felt a very sharp pain in my back and neck”. Subsequently, she visited a doctor and "he didn’t allow me to go back" into employment. She received treatment for the injuries connected with that work accident. She also saw a psychologist because she "felt depressed".
By July 2010, Ms Andromedas gave evidence that she was "recovering" from her neck and back problems and was intending to return to work fulltime. She had been certified in about late May 2010 as being able to recommence employment for 12 hours per week, although she accepted that she was still experiencing neck pain up until the time of the car accident on 21 July 2010.
Ms Andromedas described the accident as occurring when the traffic was “bumper to bumper”, not going fast and then "my neck went flying and I felt a very sharp pain in my neck and my back”. She went to the police station…

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 Andromedas v Truong

Details

AGLC: Andromedas v Truong [2016] NSWDC 330
Case: [2016] NSWDC 330
Decision Date: 21 November 2016

CaseChat Overview and Summary

The Court was asked to determine the extent of damages payable to the plaintiff, who had suffered a work-related spinal injury that rendered him unable to work. The plaintiff later experienced a motor vehicle accident, which exacerbated his existing condition and led to a requirement for domestic care. The defendant, who was liable for the plaintiff’s initial injury, sought to limit their liability for damages resulting from the subsequent motor vehicle accident.

The primary legal issue was whether the defendant should be held liable for the entirety of the plaintiff’s damages, including those arising from the motor vehicle accident. The court needed to determine the extent of the defendant’s liability for the plaintiff’s care needs post-accident and whether the subsequent accident should be treated as a novus actus interveniens, breaking the chain of causation.

The Court found that the defendant was liable for all damages resulting from the initial injury, including those exacerbated by the subsequent motor vehicle accident. The Court reasoned that the initial injury had rendered the plaintiff particularly vulnerable, and the subsequent accident did not break the chain of causation in terms of liability for damages. The Court also considered the impact of the plaintiff’s domestic care needs, which were directly attributable to the initial injury, and ruled that these should be included in the assessment of damages. The Court held that the defendant was responsible for all costs associated with the plaintiff’s care and treatment, including those incurred post-accident.

The final orders of the Court included a determination that the defendant was liable for all damages resulting from the initial injury, including those arising from the motor vehicle accident, and a ruling on the costs to be borne by the defendant. The Court ordered that the defendant pay all damages, including those for domestic care, and specified the amounts to be paid for future care and treatment.

Orders

Orders of the court

See paragraphs 58 and 61.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Andromedas v Truong [2016] NSWDC 330
Hearing dates:	14, 15, 16, 17 and 18 November 2016
Date of orders:	21 November 2016
Decision date:	21 November 2016
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	See paragraphs 58 and 61.
Catchwords:	DAMAGES – earlier work injury – unable to work – subsequent motor vehicle accident – return to work – aggravation of existing spinal issue – domestic care – costs
Legislation Cited:	Uniform Civil Procedure Rules 2005, r 42.35
Cases Cited:	Graham v Baker (1961) 106 CLR 340 Morvatjou v Moradkhani [2013] NSWCA 157
Category:	Principal judgment
Parties:	Angela Andromedas (plaintiff) Kien Hue Truong (defendant)
Representation:	Counsel: Mr C T Barry and Mr J Trainor (plaintiff) Mr W Fitzsimmons (defendant) Solicitors: Gajic Lawyers (plaintiff) Moray & Agnew (defendant)
File Number(s):	2015/178648
Publication restriction:	None