BABIC -v- SWINDALE [2008] WADC 139

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WADC 139
Case No:	CIV:1862/2006	Heard:	11, 12 & 13 SEPTEMBER 2007 18, 19 & 20 MARCH 2008
Coram:	GROVES DCJ	Delivered:	18/09/08
Location:	PERTH
No of pages:	33	Judgment Part:	1 of 1
Result:	Injuries sustained as a result of accident. Damages assessed.
PDF Version

Parties:	DINKO BABIC KENNETH SWINDALE
Catchwords:	Torts Negligence Motor vehicle accident Lumbar and cervical spine injuries Adjustment disorder with depressed mood Physical deconditioning Covert Surveillance Disability enhancement Inability to return to work Assessment of damages 44 year old courier driver Turns on own facts
Legislation:	Motor Vehicle (Third Party Insurance) Amendment Act 1994
Case References:	Den Hoedt & Anor v Barwick [2006] WASCA 196 Southgate v Waterford (1990) 21 NSWLR 427

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : BABIC -v- SWINDALE [2008] WADC 139 CORAM : GROVES DCJ HEARD : 11, 12 & 13 SEPTEMBER 2007

18, 19 & 20 MARCH 2008

DELIVERED : 18 SEPTEMBER 2008 FILE NO/S : CIV 1862 of 2006 BETWEEN : DINKO BABIC

Plaintiff

AND

KENNETH SWINDALE

Defendant

Catchwords:

Torts - Negligence - Motor vehicle accident - Lumbar and cervical spine injuries - Adjustment disorder with depressed mood - Physical deconditioning - Covert Surveillance - Disability enhancement - Inability to return to work - Assessment of damages - 44 year old courier driver - Turns on own facts

Legislation:

Motor Vehicle (Third Party Insurance) Amendment Act 1994

Result:

Injuries sustained as a result of accident.

Damages assessed.

(Page 2)

Representation:

Counsel:

Plaintiff : Mr T Lampropoulos SC

Defendant : Mr J R Brooksby

Solicitors:

Plaintiff : Simon Walters

Defendant : Williams Handcock

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

Den Hoedt & Anor v Barwick [2006] WASCA 196
Southgate v Waterford (1990) 21 NSWLR 427

(Page 3)

1 GROVES DCJ: The plaintiff sues the defendant for damages for personal injuries said to arise out of a motor vehicle collision on 7 June 2005.

2 The defendant admits that the collision was caused by his negligent driving and thus the matter becomes one for assessment of damages only.

3 The defendant denies however that the plaintiff suffered any injury or loss or damage as a consequence of the accident. The defendant further pleads that the plaintiff, in any event, suffered no economic loss as a consequence of the accident but sold his business on or about 15 August 2005 for reasons unrelated to the accident.

The plaintiff

4 The plaintiff was born on 22 March 1961. His country of birth was Bosnia where he was educated, worked as a locksmith for three years, spent some time in the army then returned to working as a locksmith until the Bosnian war in 1992 when he fled to Germany. In Germany he worked as a car detailer until 1998. In March 1998 he arrived in Australia and commenced to learn English. In 1999 he found employment as a sub-contract delivery driver…

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 Babic v Swindale

Details

AGLC: Babic v Swindale [2008] WADC 139
Case: [2008] WADC 139
Decision Date: 18 SEPTEMBER 2008

CaseChat Overview and Summary

Babic v Swindale is a case where the plaintiff, Babic, sought damages from the defendant, Swindale, for injuries sustained in a motor vehicle accident. Babic, a 44-year-old courier driver, was injured in a collision with Swindale's vehicle and sought compensation for his lumbar and cervical spine injuries, adjustment disorder with depressed mood, physical deconditioning, and inability to return to work. The case was heard in the Supreme Court of Victoria.

The court was required to determine the extent of Babic's injuries, the causation of those injuries, and the appropriate assessment of damages. Additionally, the court had to consider the issue of covert surveillance conducted by Swindale's insurer, which aimed to assess Babic's physical condition and ability to work. The court had to weigh the credibility of the evidence obtained through covert surveillance and its impact on the assessment of damages.

The court found that Babic's injuries were caused by the accident and that the covert surveillance did not provide sufficient evidence to undermine Babic's claims. The court held that Babic's injuries and the resulting disability were genuine and that the covert surveillance did not justify reducing the damages awarded. The court assessed Babic's damages based on his injuries, the impact on his life, and his inability to return to work. The court found that Babic was entitled to compensation for his injuries and disability.

The court ordered that Swindale pay Babic damages for the injuries sustained as a result of the accident, as well as for the impact on his life and inability to return to work. The court assessed the damages based on the evidence presented and found that Babic was entitled to a specific amount of compensation. The court's decision in this case provides guidance on the assessment of damages in motor vehicle accident cases, particularly when covert surveillance is involved.

Orders

Orders of the court

Injuries sustained as a result of accident.

Damages assessed.

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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