Ciftci v HERREEN - [2010] SADC 7

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CIFTCI v HERREEN
[2010] SADC 7
Judgment of Her Honour Judge Shaw
28 January 2010
DAMAGES - PARTICULAR AWARDS OF GENERAL DAMAGES
Liability admitted – Plaintiff claimed that he suffered wrist, shoulder and back injury in rear end collision in April 2002. Pre-existing injury of right wrist and arthritis – Defendant denied that plaintiff’s injuries were caused in the accident – Alternatively, the plaintiff had recovered from any injuries suffered – Defendant contended that the plaintiff was malingering.
Held: Pre-existing wrist injury and arthritis asymptomatic prior to accident – Plaintiff’s injuries caused by defendant’s negligence – Plaintiff’s experience of pain genuine – Assessment of damages – Total damages award of $279,707.50.
Wrongs Act 1936, referred to.
Glavinas v Holden's Motor Company Limited [1991] SASC 3089; Donjerkovic v Adelaide Steamship Industries Pty Ltd (1980) 24 SASR 347; Birkholz v R.J Gilbertson Pty Ltd (1985) 38 SASR 121; Purkess v Crittenden (1965) 114 CLR 164; Pipikos v W Brown & sons Pty Ltd [1970] SASR 508; Wilson v Peisley (1975) 50 ALJR 207; Cullen v Trappel (1980) 146 CLR 1; Hillier v Hewitt [2001] SASC 225; Ritter v Kenny [2009] SASC 139; Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649; Carson v Knott [1999] SASC 71; Malec v Hutton (1991) 169 CLR 639, considered.

CIFTCI v HERREEN
[2010] SADC 7
JUDGE SHAW
Civil
Introduction

This is an assessment of damages in relation to a motor vehicle accident on 11 April 2002. Liability is admitted.
On 11 April 2002, the plaintiff was a front seat passenger in a motor vehicle, registered number WSB-544, driven by Selma Manay. This vehicle was travelling in a westerly direction on Port Road at Cheltenham, in the State of South Australia. The plaintiff was wearing his seatbelt. At about the same time, the defendant was travelling in the same direction on the same road. The defendant’s vehicle collided with the rear of the vehicle in which the plaintiff was a passenger. The plaintiff alleges that as a result of the accident, he suffered injury and loss.
The Plaintiff’s Claim
The plaintiff alleged that he suffered a severe spraining injury to his right wrist. This aggravated a pre-existing asymptomatic non-union of his right ulnar styloid process. He alleged he suffered injuries to his right forearm and right shoulder. He also alleged he suffered musculo ligamentous spraining injuries to the lumbar spine and cervical spine. The plaintiff also alleged that he suffered a level of depression. He abandoned any claim in respect of any other psychiatric condition.
As a result of these injuries, the plaintiff alleged that he was required to receive medical treatment and incurred expenses which are ongoing and medical expenses above the prescribed limit. He alleged that he suffered pain and suffering which is ongoing. He alleged that he continues indefinitely to suffer significant permanent residual disabilities. He alleged a significant impairment into the future in relation…

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 Ciftci v HERREEN

Details

AGLC: Ciftci v Herreen [2010] SADC 7
Case: [2010] SADC 7
Decision Date: 28 January 2010

CaseChat Overview and Summary

The case of Ciftci v HERREEN involved a dispute between the plaintiff, Ciftci, and the defendant, HERREEN. The plaintiff claimed that he suffered injuries to his wrist, shoulder, and back in a rear-end collision in April 2002. The defendant denied that the plaintiff's injuries were caused by the accident or that the plaintiff had not recovered from any injuries suffered. The defendant also argued that the plaintiff was malingering. The case was heard in a court in Australia.

The court was required to determine whether the plaintiff's injuries were caused by the defendant's negligence and, if so, what damages should be awarded. The court had to consider the evidence presented by both parties and determine whether the plaintiff's experience of pain was genuine. The court also had to assess the total damages award based on the plaintiff's injuries and the defendant's negligence.

The court found that the plaintiff's pre-existing wrist injury and arthritis were asymptomatic prior to the accident, but that the plaintiff's injuries were caused by the defendant's negligence. The court rejected the defendant's contention that the plaintiff was malingering and found that the plaintiff's experience of pain was genuine. The court assessed the total damages award based on the plaintiff's injuries and the defendant's negligence and awarded the plaintiff $279,707.50 in damages.

The court ordered the defendant to pay the total damages award of $279,707.50 to the plaintiff. The court found that the plaintiff's injuries were caused by the defendant's negligence and that the plaintiff's experience of pain was genuine. The court rejected the defendant's contention that the plaintiff was malingering and found that the plaintiff's pre-existing wrist injury and arthritis were asymptomatic prior to the accident. The court's assessment of the total damages award was based on the evidence presented by both parties and the court's determination of the plaintiff's injuries and the defendant's negligence.

Orders