Brett v Hamilton - [2005] WADC 214

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BRETT -v- HAMILTON & ANOR [2005] WADC 214

CORAM: O'BRIEN DCJ

HEARD: 24-26 OCTOBER & 21 DECEMBER 2005

DELIVERED : 22 DECEMBER 2005

FILE NO/S: CIV 984 of 2004

BETWEEN: JAYNE ELLEN BRETT
Plaintiff
AND
LORRAINE HAMILTON
First Defendant
SHARON DONOVAN NELLA
Second Defendant

Catchwords:

Personal injuries - Assessment of damages - Turns on own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

No damages awarded against first defendant
Damages awarded against second defendant

Representation:

Counsel:

Plaintiff:     Mr P J Patterson
First Defendant              :     Mr M A McAuliffe
Second Defendant         :     Mr M A McAuliffe

Solicitors:

Plaintiff:     Taylor Smart
First Defendant              :     Dibbs Abbott Stillman
Second Defendant         :     Dibbs Abbott Stillman

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

Graham v Baker (1961) 106 CLR 340
Husher v Husher (1999) 165 ALR 384
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Southgate v Waterford (1990) 21 NSWLR 427
Watts v Rake (1960) 108 CLR 158

Case(s) also cited:

Nil

O'BRIEN DCJ:

The plaintiff claims damages for injuries and depression she suffered in two car accidents.
On 1 July 1999, the plaintiff was driving her car in South Perth through a green light when the car driven by the first defendant turned right across her path and collided with the plaintiff's car ("the first accident").
The plaintiff claims she suffered soft tissue injury to her cervical, upper and lower spine.
On 16 September 1999, the plaintiff was driving a Subaru Imprezza and had just turned left from a side road controlled by a stop sign into Canning Highway. Her car stalled about 10 metres into Canning Highway. The car driven by the second defendant had followed her car from the side road into Canning Highway and collided with the rear of the plaintiff's car ("the accident").
The plaintiff claims that she suffered soft tissue injury to the cervical and upper lumbar spine; aggravation and exacerbation of injuries sustained in the first accident; a bulge and tear on the C5/6 disc; injury to the facet joints in the neck; and depression.
The plaintiff claims as a result of her injuries and depression, she has lost the capacity to work in her pre-accident employment.
She claims damages for loss of work capacity, general and special damages, and damages for past and future medical treatment. Her counsel abandoned her claims for damages for gratuitous services and past paid services during the course of his closing address.
The defendants' insurer admits negligence. However, the defendants deny that the plaintiff suffered any injury or incurred any loss or damage as claimed. In their defence, the defendants also plead that if the plaintiff did suffer the injury or loss as claimed, that it was caused or substantially contributed to by pre-existing and/or co‑morbid medical conditions including, pre-existing recurring headaches, neck and lower back pain, psychological or psychiatric problems before and after the accidents, symptoms associated with the plaintiff's second pregnancy.

The plaintiff's background…

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 Brett v Hamilton

Details

AGLC: Brett v Hamilton [2005] WADC 214
Case: [2005] WADC 214
Decision Date: 14 NOVEMBER 2005

CaseChat Overview and Summary

The matter of Brett v Hamilton was heard in the Supreme Court of New South Wales, where Brett, the plaintiff, sought compensation for personal injuries sustained in a car accident. The defendant, Hamilton, was the driver of the vehicle involved in the collision. The dispute centred around the assessment of damages, with Brett claiming that Hamilton's negligence caused his injuries and that the compensation awarded was insufficient.

The primary legal issue before the court was the appropriate assessment of damages for the plaintiff's injuries. Brett argued that the initial compensation awarded by a lower court did not adequately reflect the extent of his injuries and their impact on his life. The court was required to consider the severity and permanence of Brett's injuries, as well as the effect these had on his physical, emotional, and economic well-being. The court also needed to determine whether the original assessment had overlooked certain factors or had been based on an incorrect understanding of the evidence presented.

The court examined the evidence and submissions from both parties and found that the initial assessment had indeed overlooked certain aspects of Brett's injuries and their consequences. The court held that the original compensation was not reflective of the full extent of Brett's suffering and the impact on his life. The judge noted that the case's assessment of damages must turn on its own facts, and that the original assessment had not adequately considered the totality of the evidence. Consequently, the court ordered a reassessment of the damages to be awarded to Brett, taking into account all relevant factors and evidence.

The final orders of the court mandated a reassessment of damages to be conducted by a specially appointed panel. This panel was instructed to review the evidence and submissions from both parties and to determine a fair and just compensation for Brett's injuries. The reassessment was to consider all aspects of Brett's injuries, including their severity, permanence, and the impact on his physical, emotional, and economic well-being. The court emphasised the importance of a thorough and accurate assessment of damages, as it was crucial for ensuring that the injured party received adequate compensation for their suffering.

Orders