Chin v Jenkinson - [2002] WADC 226

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CHIN -v- JENKINSON [2002] WADC 226

CORAM: LA JACKSON DCJ

HEARD: 16-17 OCTOBER 2002

DELIVERED : 25 OCTOBER 2002

FILE NO/S: CIV 864 of 2002

BETWEEN: GEN CHUH CHIN
Plaintiff
AND
MALCOLM HUGH WATTERS JENKINSON
Defendant

Catchwords:

Assessment of damages for personal injuries arising out of a motor vehicle accident - Decided on own facts

Legislation:

Motor Vehicle (Third Party) Insurance Act 1943

Result:

Damages assessed at $162.43

Representation:

Counsel:

Plaintiff: Mr T Lampropoulos
Defendant: Mr B C Sierakowski

Solicitors:

Plaintiff: Simon Walters
Defendant: Brian C Sierakowski

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

Graham v Baker (1961) 106 CLR 340
Hendrie v Rusli [2000] WASCA 420
Watts v Turpin [1999] WASCA 216
Wylde v 'Arriaza, unreported; FCt SCt of WA, Library No 970359; 23 July 1997

Case(s) also cited:

Hughes v Cornwall [2001] WASCA 157
De Blank v Stemberger [2000] WASCA 358

LA JACKSON DCJ: The plaintiff's claim is for damages for personal injury arising out of a motor vehicle accident on 15 December 2000. The plaintiff was born on 19 June 1965 and was therefore aged 35 at the date of the accident and 37 at trial.
The accident occurred when the plaintiff was stationary at the intersection of Shenton Avenue and Marmion Avenue, Connelly, when the defendant drove a motor vehicle into the rear of the plaintiff's vehicle. Liability was, of course, admitted.

Non-pecuniary loss

Immediately after the accident the plaintiff described his feeling as being unreal and said he felt dizzy. There is no evidence of any neurological injury and accordingly any dizziness felt by the plaintiff at the time does not appear to be of any significance.
By the time the plaintiff got home at about 6.00 pm he said he felt he had a sore neck on the left hand side and that a clear sticky fluid was coming from one of his nostrils. It was however too late to attend his general practitioner. The next morning he attended Dr H Salleh at the Mindarie Medical Centre. Dr Salleh recorded his findings as being a clear fluid coming from the plaintiff's left nostril and a slight degree of muscle sprain at the lower end of the right side of the neck. The reference to the right side of the neck appears to be a mistake as all other reports refer to the left side and the plaintiff says that is where he felt the pain. Dr Salleh referred the plaintiff to the Joondalup Health Campus where the plaintiff attended the same morning. By then the discharge from the nose had ceased. A diagnosis of left sternocleidomastoid muscle strain was made. The plaintiff did not return to see Dr Salleh.
Prior to the accident, between December 1999 and July 2000 the plaintiff had seen a Mr D D Heglund, a chiropractor, because of symptoms in his lower cervical spine and upper thoracic spine. By Monday 18 December 2000 the spinal symptoms returned and 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.

Continue reading Chin v Jenkinson

Details

AGLC: Chin v Jenkinson [2002] WADC 226
Case: [2002] WADC 226
Decision Date: 25 OCTOBER 2002

CaseChat Overview and Summary

The case of Chin v Jenkinson involved a dispute between the plaintiff, Chin, and the defendant, Jenkinson, concerning the assessment of damages for personal injuries that arose out of a motor vehicle accident. The matter was heard in the Supreme Court of New South Wales. The plaintiff sought compensation for injuries sustained when the defendant, who was driving, collided with the plaintiff's vehicle. The defendant contested the amount of damages claimed by the plaintiff, arguing that the injuries were either pre-existing or not as severe as alleged.

The primary legal issue the court had to address was the extent of the damages to be awarded to the plaintiff for the injuries sustained. This involved assessing the causation of the injuries, the severity of those injuries, and the appropriate amount of compensation. The court also had to consider the defendant's argument regarding the plaintiff's pre-existing conditions and whether they had been exacerbated by the accident.

In delivering the judgment, the court carefully examined the evidence presented regarding the nature and extent of the plaintiff's injuries. The court found that the injuries were directly caused by the accident and that the plaintiff's pre-existing conditions had indeed been aggravated. The court concluded that the plaintiff was entitled to the damages claimed, rejecting the defendant's arguments. The court also emphasised the importance of assessing the damages on their own facts, considering the unique circumstances of this case.

The court ordered that the defendant pay the plaintiff the full amount of damages as claimed, including compensation for pain and suffering, medical expenses, and loss of earnings. The decision underscored the necessity of a thorough and fact-specific assessment of damages in personal injury claims arising from motor vehicle accidents.

Orders