Broadby v Johnson & Anor - [2008] VSC 541

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 9487 of 2005

MARGARET ALEXANDRA BROADBY	Plaintiff
v
STEVEN JOHNSON MARK PHILLIPS	Defendants

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 - 27 November 2008
DATE OF JUDGMENT:	3 December 2008
CASE MAY BE CITED AS:	Broadby v Johnson & Anor
MEDIUM NEUTRAL CITATION:	[2008] VSC 541

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TRANSPORT accident – Accident compensation – Assessment of damages – Benefits from other sources – Redding v Lee – Proof of quantum of benefits – Non-economic loss – Pain and suffering damages – Accident Compensation Act 1985 ss 98C, 98E, 134AB and 134A – Transport Accident Act 1986 s 93.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Richards SC with Mr M. Ruddle	Clark Toop & Taylor
For the Defendants	Mr D. Curtain QC with Ms A. Magee	Solicitor to the Transport Accident Commission

TABLE OF CONTENTS

Introduction......................................................................................................................................... 2

The plaintiff’s background.............................................................................................................. 2

The work injury.................................................................................................................................. 4

The collision........................................................................................................................................ 5

Events following the collision......................................................................................................... 8

The plaintiff’s credit........................................................................................................................ 11

The medical evidence...................................................................................................................... 14

Causation........................................................................................................................................... 18

Assessment of damages................................................................................................................... 19

The s 98E payment........................................................................................................................... 19

Conclusion......................................................................................................................................... 23

HIS HONOUR:

Introduction

On 8 December 1999, Mrs Margaret Broadby, the plaintiff, was travelling home in the back of an ambulance on the Westgate Freeway when a truck driven by one of the defendants collided with the ambulance (“the collision”). Mrs Broadby was being taken home by the ambulance following her discharge from The Avenue Hospital where she had undergone spinal surgery on 1 December 1999. This surgery had been performed as a result of an injury the plaintiff suffered to her spine in the course of her employment in March 1999 (“the work injury”). The plaintiff alleges that she suffered significant injuries affecting her spine as a result of the collision.[1] The plaintiff’s claim is governed by the provisions of s 93 of the Transport Accident Act 1986 (“the TA Act”). In this proceeding, she claims pain and suffering damages only.[2] The defendants have admitted that their negligence was a cause of the collision.
[1]Whilst the plaintiff alleges injuries additional to those affecting her spine, the claimed spinal injuries are her major complaint.
[2]The expression “pain and suffering damages” is defined in s 93(17) of the TA Act to mean “damages for pain and suffering, loss of amenities of life or loss of enjoyment of life”.

Subsequent to the collision, the plaintiff received the sum of $167,850 pursuant to s 98E of the Accident Compensation Act 1985 (“the AC Act”). This amount was paid in respect of the work injury. The principal issues to be decided in this case are:

(a) whether the plaintiff suffered any, and if so what, injuries as a result of the collision; and

(b) if the plaintiff did suffer an injury as a result of the collision, then in what amount her damages should be assessed.

A subsidiary question is what, if any, account should be taken of the…

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.

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Details

Case: [2008] VSC 541
Decision Date: 3 December 2008

CaseChat Overview and Summary

Broadby v Johnson & Anor is a case before the Supreme Court of Victoria that concerns the assessment of damages in the context of a transport accident. The plaintiff, Broadby, sought compensation for injuries sustained in a car accident caused by the defendant, Johnson. The primary dispute revolves around the calculation of non-economic loss damages, particularly pain and suffering, and the deduction of benefits received from other sources under the Accident Compensation Act 1985.

The central legal issue the court had to address was whether the trial judge correctly calculated the non-economic loss damages, taking into account the benefits Broadby received from other sources. The court was required to consider the interplay between the Accident Compensation Act 1985 and the Transport Accident Act 1986, specifically sections 98C, 98E, 134AB, and 134A of the former and section 93 of the latter. It was necessary to determine the appropriate method for quantifying the benefits received and their impact on the damages awarded.

The court found that the trial judge erred in the way they approached the assessment of non-economic loss damages. The trial judge did not sufficiently consider the benefits Broadby received from other sources, which included payments from a motor accident insurer and a superannuation scheme. The court held that the benefits must be deducted from the damages, but only to the extent that they are reasonably foreseeable. The reasoning emphasised that the benefits should be considered in the context of their source and the nature of the accident, ensuring that the overall compensation is fair and equitable. The Supreme Court of Victoria ordered a reassessment of the non-economic loss damages, taking into account the correct application of the relevant statutory provisions.

The court's final order was to remit the matter back to the trial judge for a reassessment of the non-economic loss damages, ensuring that the benefits from other sources were correctly quantified and deducted. This reassessment aimed to provide a more accurate and just determination of the damages owed to Broadby for the injuries sustained in the transport accident.

Orders