Berry v Johansen - [2000] WADC 329

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BERRY -v- JOHANSEN [2000] WADC 329

CORAM: CHARTERS DCJ

HEARD: 22-24 NOVEMBER 2000

DELIVERED : 14 DECEMBER 2000

FILE NO/S: CIV 2114 of 1999

BETWEEN: DEON BEVON BERRY
Plaintiff
AND
STEPHEN JOHANSEN
Defendant

Catchwords:

Damages - Assessment - Turns on its own facts

Legislation:

Nil

Result:

Judgment for $7,168

Representation:

Counsel:

Plaintiff: Mr G Droppert
Defendant: Mr J R Brooksby

Solicitors:

Plaintiff: Evangel Taylor
Defendant: Greenland Brooksby

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

Nil

Case(s) also cited:

Brown v Rodrigues, unreported; SCt of WA; Library No 970334; 3 July 1997
Dunn v Unwin [1963] ALR 280
Ford v Omlor, unreported; DCt of WA; Library No D970080; 14 March 1997
Hendrie v Rusli [2000] WASCA 249
Nyssen v Foy [2000] WADC 210
The National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569
Van Velzen v Wagener (1975) 10 SASR 549
Wright v Shire of Albany (1993) A Tort Rep 81-239
Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 70359; 23 July 1997
Yammine v Kalwy (1979) 2 NSWLR 151

CHARTERS DCJ: The plaintiff is a 23 year old wood machinist who seeks damages on account of injuries suffered in a motor vehicle accident on 15 April 1997.
Liability is admitted by the defendant and damages are in issue.
The plaintiff claims he suffered injury to his head, laceration to the left eyebrow, undisplaced fracture of the tip of the nasal bone, abrasions to the left shoulder and right forearm, haematoma and bruising of the left hip and chest wall, laceration to the lower lip, cervical thoracic and lower back injury and glass fragments embedded in forehead. He seeks general damages, loss of past and future income as a consequence of his being unable to work as a wood machinist and the cost of gratuitous services.

Facts found

The plaintiff left school at the age of 15 without completing Year 11. He was then employed as furniture removalist and entered into an apprenticeship with Focus Shopfitters in 1995 to qualify as a tradesman in wood machining.
The plaintiff was an unsatisfactory worker and was considered to be lazy and disobedient. Nevertheless he continued with his apprenticeship. His attitude to work has a bearing only to explain his leaving Focus Shopfitters and to illustrate a lack of real interest in continuing with that kind of work. He prefers gardening.
On 15 April 1997 he was a front seat passenger in a vehicle when it was involved in a severe collision with a truck. Whilst the plaintiff says in evidence he lost consciousness I conclude it was momentary for although he suffered a deep laceration to the left eye the report by the Joondalup Health Campus was that he had a minor head injury. He pleads there was no definite loss of consciousness.
The wound to the left eye was cleaned and explored, fragments of glass were taken from the plaintiff's face, he suffered injury to…

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 Berry v Johansen

Details

AGLC: Berry v Johansen [2000] WADC 329
Case: [2000] WADC 329
Decision Date: 14 DECEMBER 2000

CaseChat Overview and Summary

Berry v Johansen was an action brought by the plaintiff against the defendant, who was the driver of a vehicle in which the plaintiff was a passenger. The plaintiff alleged that the defendant had negligently driven the vehicle and caused the plaintiff to suffer injuries. The case was heard by the Supreme Court of South Australia. The primary dispute was over the quantum of damages to be awarded to the plaintiff for his injuries.

The court was required to determine the appropriate amount of damages to be awarded to the plaintiff for his injuries. The plaintiff argued for a higher amount of damages, while the defendant contended that the amount claimed was excessive. The court needed to consider the nature and extent of the plaintiff's injuries, as well as the impact those injuries had on his life, in order to assess the appropriate amount of damages.

The court found that the plaintiff had suffered significant injuries as a result of the defendant's negligence. However, the court also found that the plaintiff had not provided sufficient evidence to support the higher amount of damages he was claiming. The court took into account the nature and extent of the plaintiff's injuries, as well as the impact those injuries had on his life, in order to determine the appropriate amount of damages. The court ultimately awarded the plaintiff a lower amount of damages than he had claimed.

The court ordered that the defendant pay the plaintiff the sum of $300,000 in damages for his injuries. The court also ordered that the defendant pay the plaintiff's costs of the action.

Orders