Choy v Arnott - [2009] NSWDC 17

CITATION: Choy v Arnott [2009] NSWDC 17

HEARING DATE(S): 28, 29, 30 and 31 July 2008; 29; 30 and 31 July 2008

JUDGMENT DATE:
4 March 2009

JURISDICTION: District Court - Civil

JUDGMENT OF: Levy SC DCJ

DECISION: 1. Verdict for the Plaintiff in the sum of $2,692,664.54;
2. The Plaintiff’s contributory negligence is assessed in the apportionment agreed at 20 percent;
3. Judgment for the Plaintiff in the apportioned sum of $2,154,131.60;
4. Defendant to pay the Plaintiff’s costs.

CATCHWORDS: DAMAGES – personal injury – Plaintiff sustained a head and brain injury in a motor vehicle collision – negligence admitted – agreed apportionment for contributory negligence – assessment of multiple heads of damage pursuant to Motor Accidents Compensation Act, 1999.

LEGISLATION CITED: Motor Accidents Compensation Act
1999
Uniform Civil Procedure Rules, 2005 : Schedule 7

CASES CITED: Griffiths v Kerkemeyer [1976-1977] 139 CLR 164
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Nominal Defendant v Gardikiotis [1995] HCA 56; (1996) 186 CLR 49
Stewart v Andri [1993-1994] 19 MVR 1
Strinic v Singh [2009] NSWCA 15
Willett v Futcher [2005] HCA 47; (2005) 221 CLR 627

PARTIES: Henry Choy (Plaintiff)
Demetrious Peter Arnott (Defendant)

FILE NUMBER(S): 1647 of 2007

COUNSEL: Mr C Leahy SC (Plaintiff)
Mr J Turnbull (Defendant)

SOLICITORS: Ron Kramer Associates (Plaintiff)
Holman Webb Lawyers (Defendants)

JUDGMENT

Nature of case

1. The Plaintiff brings these proceedings claiming damages for personal injuries he sustained in a motor vehicle collision that occurred at 4.00am on Thursday 29 January 2004 whilst he was on his way to work. He was driving a motor vehicle that was involved in a heavy impact collision with a prime mover truck that was towing a trailer at an intersection. The Plaintiff sustained a severe closed head injury and facial fractures. He has been left with frontal lobe brain damage.

Liability

2. The parties have resolved the issues of primary liability. The Defendant has conceded the issue of negligence. The Plaintiff has conceded the issue of contributory negligence and the parties have agreed that the apportionment on account of the Plaintiff’s contributory negligence should be at 20 percent. Accordingly, the matter proceeded to an assessment of the Plaintiff’s entitlement to damages.

Assessed heads of damage

3. A total of nineteen heads of damage required assessment. These are listed below together with paragraph references:

Head of Damage

Paragraphs

(a) Non economic loss [60] - [62]

(b) Past loss of earning capacity [63] - [81]

(c) Fox v Wood [82]

(d) Future loss of earning capacity [83] - [116]

(e) Past loss of employer funded superannuation contributions [117]

(f) Future loss of employer funded superannuation contributions [118]

(g) Past domestic and attendant care services [119] - [151]

(h) Future domestic care services [152] - [160]

(i) Future treatment [161] - [178]

(j) Case Manager [179]

(k) Drop-in supervision by Case Manager [180] - [183]

(l) Respite care [184] - [189]

(m) Gymnasium membership and personal trainer [190] - [195]

(n) Sex worker [196]…

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 Choy v Arnott

Details

AGLC: Choy v Arnott [2009] NSWDC 17
Case: [2009] NSWDC 17
Decision Date: 4 March 2009

CaseChat Overview and Summary

In the case of Choy v Arnott, the plaintiff sought damages for personal injury sustained in a motor vehicle collision. The defendant admitted negligence but argued for a lower compensation amount. The court was required to assess various heads of damage in accordance with the Motor Accidents Compensation Act, 1999, and determine the extent of the plaintiff's contributory negligence.

The key legal issue was the assessment of the total damages to be awarded to the plaintiff, considering the admitted negligence and the agreed apportionment of contributory negligence at 20%. The court had to evaluate the components of damages, including pain and suffering, loss of amenities, and future medical expenses, while applying the statutory framework.

The court meticulously reviewed the evidence and submissions from both parties, ultimately determining that the plaintiff was entitled to a total of $2,692,664.54 in damages. After applying the 20% contributory negligence apportionment, the court awarded judgment to the plaintiff in the sum of $2,154,131.60. The defendant was ordered to pay the plaintiff's costs.

The court's final orders included a verdict for the plaintiff in the total sum of $2,692,664.54, with the plaintiff's contributory negligence assessed at 20%. Judgment was entered for the plaintiff in the apportioned sum of $2,154,131.60, with the defendant to pay the plaintiff's costs.

Orders

Orders of the court

1. Verdict for the Plaintiff in the sum of $2,692,664.54; 2. The Plaintiff's contributory negligence is assessed in the apportionment agreed at 20 percent; 3. Judgment for the Plaintiff in the apportioned sum of $2,154,131.60; 4. Defendant to pay the Plaintiff's costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Choy v Arnott [2009] NSWDC 17
HEARING DATE(S):	28, 29, 30 and 31 July 2008; 29; 30 and 31 July 2008
JUDGMENT DATE:	4 March 2009
JURISDICTION:	District Court - Civil
JUDGMENT OF:	Levy SC DCJ
DECISION:	1. Verdict for the Plaintiff in the sum of $2,692,664.54; 2. The Plaintiff’s contributory negligence is assessed in the apportionment agreed at 20 percent; 3. Judgment for the Plaintiff in the apportioned sum of $2,154,131.60; 4. Defendant to pay the Plaintiff’s costs.
CATCHWORDS:	DAMAGES – personal injury – Plaintiff sustained a head and brain injury in a motor vehicle collision – negligence admitted – agreed apportionment for contributory negligence – assessment of multiple heads of damage pursuant to Motor Accidents Compensation Act, 1999.
LEGISLATION CITED:	Motor Accidents Compensation Act 1999 Uniform Civil Procedure Rules, 2005 : Schedule 7
CASES CITED:	Griffiths v Kerkemeyer [1976-1977] 139 CLR 164 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Nominal Defendant v Gardikiotis [1995] HCA 56; (1996) 186 CLR 49 Stewart v Andri [1993-1994] 19 MVR 1 Strinic v Singh [2009] NSWCA 15 Willett v Futcher [2005] HCA 47; (2005) 221 CLR 627
PARTIES:	Henry Choy (Plaintiff) Demetrious Peter Arnott (Defendant)
FILE NUMBER(S):	1647 of 2007
COUNSEL:	Mr C Leahy SC (Plaintiff) Mr J Turnbull (Defendant)
SOLICITORS:	Ron Kramer Associates (Plaintiff) Holman Webb Lawyers (Defendants)

Head of Damage	Paragraphs
(a) Non economic loss	[60] - [62]
(b) Past loss of earning capacity	[63] - [81]
(c) Fox v Wood	[82]
(d) Future loss of earning capacity	[83] - [116]
(e) Past loss of employer funded superannuation contributions	[117]
(f) Future loss of employer funded superannuation contributions	[118]
(g) Past domestic and attendant care services	[119] - [151]
(h) Future domestic care services	[152] - [160]
(i) Future treatment	[161] - [178]
(j) Case Manager	[179]
(k) Drop-in supervision by Case Manager	[180] - [183]
(l) Respite care	[184] - [189]
(m) Gymnasium membership and personal trainer	[190] - [195]
(n) Sex worker	[196]…