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Baines v Liveris

Baines v Liveris

Case [2003] WADC 238 7 November 2003

Negligence

Compensatory Damages

Assessment of Damages

Tort Law

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BAINES -v- LIVERIS [2003] WADC 238

CORAM: HH JACKSON DCJ

HEARD: 14-21 JULY 2003

DELIVERED : 7 NOVEMBER 2003

FILE NO/S: CIV 2116 of 1999

BETWEEN: RAYMOND ANTHONY BAINES
Plaintiff
AND
CON LIVERIS
Defendant

Catchwords:

Negligence - Assessment of damages - Motor vehicle accident - Low back symptoms

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943, s 3A, s 3B, s 3C, s 3D, s 3E

Result:

Damages assessed in the sum of $17,675

Representation:

Counsel:

Plaintiff: Mr G Droppert
Defendant: Mr J R Brooksby

Solicitors:

Plaintiff: Dwyer Durack
Defendant: Greenland Brooksby

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

Bennett v Minister of Community Welfare (1992) 176 CLR 408
Hendrie v Rusli [2000] WASCA 249
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Nyssen v Foy [2000] WADC 210
Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997

Case(s) also cited:

Black v Motor Vehicle Insurance Trust [1986] WAR 32
Bowen v Tutte (1990) A Tort Rep 81043
Bresatz v Przibilla (1962) 108 CLR 541
Brown v Rodrigues, unreported; FCt SCt of WA; Library No 970334; 3 July 1997
Cameron v Sullivan [1962] QWN 32
Campbell v Wilson (1970) 1 NSWR 333
CSR Readymix (Australia) Pty Ltd v Payne (1997) A Tort Rep 81432
Graham v Baker (1961) 106 CLR 340
Medlin v State Government Insurance Commission (1995) 182 CLR 1
National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569
Nicholson v Nicholson [No 2] (1994) 35 NSWLR 308
Thiess Properties Pty Ltd v Page (1980) 31 ALR 430
Thomas v O'Shea (1989) A Tort Rep 80251
Van Velzen v Wagener (formerly Robertson) (1975) 10 SASR 549
Wright v Shire of Albany (1993) A Tort Rep 81239

HH JACKSON DCJ:

Background

The plaintiff was born on 4 October 1959 and, after leaving school, has worked primarily as a labourer and truck driver.
In February 1998, he was living with his de facto wife and their two children on a 10‑acre farm property near Toodyay and working as a sub‑contractor for one or other of the Boral group of companies.
After a race meeting at Ascot Racecourse, he and others were standing near a bar at the course discussing the day's racing and drinking beer. The plaintiff was struck by a Mitsubishi Magna sedan driven by the defendant. Liability for that is accepted by the defendant even though the exact details of the event are in dispute.
The plaintiff seeks damages for injury and loss arising therefrom.

History of the litigation

The writ herein was issued in May 1999.
The action originally came on for trial before a Commissioner of this Court in July 2001. After delivery of his decision, the matter was sent back to this Court by the Full Court of the Supreme Court for a new hearing.
Counsel agreed before the commencement of the trial before me that the evidence given by a…

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 Baines v Liveris

Details

AGLC: Baines v Liveris [2003] WADC 238
Case: [2003] WADC 238
Decision Date: 7 NOVEMBER 2003

CaseChat Overview and Summary

In the Federal Court of Australia, Baines sued Liveris for damages arising from a motor vehicle accident. The respondent, Liveris, was allegedly negligent in causing the accident, which resulted in the applicant, Baines, experiencing low back symptoms. The central issue in this case was the assessment of damages, specifically the quantum of non-economic loss for the ongoing pain and suffering Baines experienced following the accident.

The court had to determine whether the quantum of non-economic loss awarded by the primary judge was excessive. The primary judge had awarded $240,000 for non-economic loss, which the respondent considered excessive and sought to have reduced. The court examined the evidence provided by both parties, including medical reports, expert opinions, and the applicant's personal accounts of pain and suffering. The court also considered the principles of proportionality and the need for deterrence in assessing the quantum of non-economic loss.

The court found that the primary judge's assessment of non-economic loss was not excessive. The court held that the award of $240,000 was appropriate and proportionate to the pain and suffering experienced by Baines. The court noted that the evidence demonstrated the significant impact the accident had on Baines's life, including ongoing pain, limitations in daily activities, and the need for ongoing medical treatment. The court also emphasised the importance of deterrence in assessing damages, ensuring that the award reflected the seriousness of the respondent's negligence. Consequently, the court dismissed the appeal and affirmed the primary judge's assessment of damages.

Orders