Barwick v Den Hoedt - [2004] WADC 10

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BARWICK -v- DEN HOEDT & ANOR [2004] WADC 10

CORAM: JENKINS DCJ

HEARD: 4-7 MARCH 2003, 24 SEPTEMBER 2003,
21 JANUARY 2004

DELIVERED : 28 JANUARY 2004

FILE NO/S: CIV 1915 of 2001

BETWEEN: BETTY BARWICK
Plaintiff
AND
CORNELIUS DEN HOEDT
First Defendant
RANDALL ROY DOUGLAS
Second Defendant

Catchwords:

Damages - Assessment - Personal injuries - Motor vehicle accidents - Injuries to left shoulder and arm - Intervening non-tortious accident causing serious injury and disability - Cervical spine degeneration - Turns on own facts

Legislation:

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

Result:

Judgment against the first defendant in the sum of $10,455.58

Judgment against the second defendant in the sum of $3,759.60

Representation:

Counsel:

Plaintiff:     Mr B L Nugawela
First Defendant             :     Mr J R Brooksby
Second Defendant         :     Mr J R Brooksby

Solicitors:

Plaintiff:     Doray Solicitors
First Defendant             :     Greenland Brooksby
Second Defendant         :     Greenland Brooksby

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

Co-Operative Bulk Handling Limited v Taylor & Anor, unreported; FCt SCt of WA; Library No 960528; 17 September 1996
March v E & M H Stramare Pty Ltd & Anor (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485

Case(s) also cited:

Nil

JENKINS DCJ: The plaintiff, Betty Barwick, seeks damages for personal injuries suffered following two motor vehicle accidents which occurred on 16 January 1997 and 13 January 1999 respectively.
Both defendants, Cornelius Den Hoedt and Randall Roy Douglas, admit that the accidents were caused by their respective negligence but deny that the plaintiff has suffered the injuries, loss and damage alleged in the statement of claim. In their defences the defendants assert that the accidents were of such a minor nature as to be unlikely to cause any or any significant injury to the plaintiff. The defendants alternatively plead that most of the plaintiff's injuries, loss and damage resulted from a fall she sustained at her home on 16 December 1997, her pre-existing and unrelated chronic obstructive airways disease, her osteoporosis or a fracture to her right foot which she sustained in November 1995.

Background

Mrs Barwick was born on 9 April 1951. She completed year 12 in England and immediately commenced full‑time factory work. She married her first husband in 1969 and had two children. Mrs Barwick migrated to Australia in 1972. She and her first husband separated in 1976. Thereafter the plaintiff married her present husband and had two more children. The plaintiff's third child, Kevin, born in 1978, still resides with the plaintiff and her second husband. The plaintiff's fourth child, Lisa, moved out of home in 1998 soon after having her first child.
In 1983 Mrs Barwick commenced part-time work as a shop assistant. This was her first return to work after having had her family. In 1986 the plaintiff commenced full-time work as a shop…

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 Barwick v Den Hoedt

Details

AGLC: Barwick v Den Hoedt [2004] WADC 10
Case: [2004] WADC 10
Decision Date: 28 JANUARY 2004

CaseChat Overview and Summary

In the case of Barwick v Den Hoedt, the plaintiff, Barwick, sought compensation for injuries sustained in two separate motor vehicle accidents. The first accident occurred in 1996, resulting in injuries to Barwick's left shoulder and arm, while the second accident, occurring in 1998, led to more severe injuries, including cervical spine degeneration. The dispute centred on the appropriate assessment of damages for both accidents under the Motor Vehicle (Third Party Insurance) Act 1943. The court had to determine whether the damages for non-pecuniary loss could be aggregated for the purpose of meeting the statutory threshold or if they should be assessed separately for each accident.

The legal issues revolved around the interpretation and application of the Motor Vehicle (Third Party Insurance) Act 1943, specifically sections 3A and 3C, in the context of multiple accidents. The court had to decide whether the statutory restrictions on damages for non-pecuniary loss applied to each individual accident or if they could be considered in aggregate. Additionally, the court had to assess the extent to which the injuries from the first accident should be considered in determining the damages for the second accident. The plaintiff argued that the non-pecuniary loss from both accidents could be aggregated to meet the statutory threshold for an award of damages for non-pecuniary loss, while the defendant contended that the damages should be assessed separately for each accident.

The court ruled that the statutory restrictions on damages for non-pecuniary loss apply to each individual accident, and therefore, the damages for each accident must be assessed separately. The court held that the provisions of section 3A of the Act clearly apply to a singular accident and not to the aggregate of multiple accidents. This interpretation was supported by the case of Co-Operative Bulk Handling Limited v Taylor, which indicated that in cases involving different causes of action, the trial judge must separately assess the loss arising from each accident. Consequently, the court found that the plaintiff's injuries from the first accident, while resolved by the end of October 1997, were not severe enough to meet the statutory threshold for an award of damages for non-pecuniary loss. The court assessed the plaintiff's non-pecuniary loss from the first accident as three per cent of the most extreme case, which was less than five per cent, and thus, did not qualify for an award under this head of damages.

The court's final orders were that the damages for non-pecuniary loss related to the first accident were below $12,500, and therefore, no award could be made under this head of damages. The court separately assessed the damages for non-pecuniary loss related to the second accident, considering the plaintiff's overall injuries and the impact on her earning capacity, and made an appropriate award under the provisions of the Motor Vehicle (Third Party Insurance) Act 1943.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In assessing damages for the first accident I must disregard the possibility of future tortious injury, such as occurred in the second accident. In assessing the damages for the second accident I must take into account the injuries caused by the first accident or the non compensable accident to the extent that they have impaired the plaintiff's earning capacity: Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485, 498-499. As the plaintiff's injuries arose out of a motor vehicle accident which occurred after 1 July 1993 the provisions of s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 ("the Act") governs the amount of damages to be awarded for non‑pecuniary loss. Non‑pecuniary loss is defined in the Act to include pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm. That is, all those matters the subject of an award of general damages. The Act requires me to determine the amount of general damages as a proportion of the maximum amount that may be awarded. The maximum that may be awarded under the Act is currently set at a figure of $249,000. The maximum can only be awarded in the most extreme case. If the amount of non‑pecuniary loss is assessed to be $12,500, that is five per cent of $249,000, or less the Act prohibits me from awarding damages for non‑pecuniary loss. The plaintiff submitted that it was possible to aggregate the general damages awards appropriate for the first and second accident. The advantage to the plaintiff in this respect is that it may enable her to obtain an award for non‑pecuniary loss for both accidents, whereas, if the statutory formula was applied to each accident separately she may not meet the Act's restrictions on the award of damages for non-pecuniary loss in respect to one or both accidents. By virtue of s 3A of the Act, the restrictions, "apply to the awarding of damages in respect of bodily injury to a person directly caused by, or by the driving of, a motor vehicle". Thus it is clear enough from the words of the section that they apply to a singular accident and not to the aggregate of two or more accidents. Further, cases such as Co-Operative Bulk Handling Limited v Taylor & Anor, unreported; FCt SCt of WA; Library No 960528; 17 September 1996 make it clear that, in a case involving different causes of action the trial judge's job is to separately assess the loss arising from each accident. Consequently, I do not accept that I am able to aggregate the non‑pecuniary loss arising out of each accident for the purposes of s 3C of the Act. Compared to what may be regarded as the most extreme case, that is quadriplegia, I find that the plaintiff's first accident related injuries, pain and disabilities to be compensated for under an award of general damages are three per cent, thus less than 5 per cent, of the most extreme case. In coming to this finding I have taken into account all relevant matters, in particular my finding that her injuries from the first accident had resolved by the end of October 1997, the fact that her injuries were restricted to her neck, shoulder and arm and the limited effect these temporary injuries had on her enjoyment of life. Consequently, my assessment of damages for non‑pecuniary loss related to the first accident is below $12,500 and I cannot make an award under this head of damages.