Clifton v Dunn - [2009] NSWDC 187

CITATION: Clifton V Dunn [2009] NSWDC 187

HEARING DATE(S): 20, 21, 22, 23, 24, 27, 29 and 30 April 2009

JUDGMENT DATE:
29 May 2009

JURISDICTION: Civil jurisdiction

JUDGMENT OF: Johnstone DCJ

DECISION: 1. Judgment for the plaintiff for $1,430,860.50
2. Defendant to pay the plaintiff’s costs on the ordinary basis
3. Leave to apply in relation to interest and costs

CATCHWORDS: DAMAGES - motor accident causing injuries resulting in physiological impairments and a severe psychiatric condition - causation: whether plaintiff’s ongoing problems were caused by the injuries or the inappropriate use of opiate analgesia - past and future medical expenses, economic loss and domestic care and assistance - other miscellaneous costs and expenses

LEGISLATION CITED: Motor Accidents Compensation Act 1999 (NSW)

CASES CITED: 3WJ Pty Ltd v Kanj [2008] NSWCA 321
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Mahony v J Kruschich (Demolitions) Pty Limited [1985] HCA 37
McGroder v Maguire [2002] NSWCA 261

PARTIES: Corey Thomas Clifton (Plaintiff)
Janice Dunn (Defendant)

FILE NUMBER(S): 3167/07

COUNSEL: Mr H Marshall SC with Mr D J Price (Plaintiff)
Mr P O’Connor (Defendant)

SOLICITORS: Oliver Campbell Lawyers (Plaintiff)
Holman Webb (Defendant)

JUDGMENT

The proceedings and the issues
1. The plaintiff, Corey Clifton, claims damages in respect of injuries received in a motor accident at Cessnock on 20 May 2005. Liability has been admitted and I am required to assess the damages.

2. The damages fall to be determined and assessed under Chapter 5 of the Motor Accidents Compensation Act 1999 (NSW) (“the MACA”).

3. Mr Clifton alleged that he sustained injuries to his head, neck and back, resulting in continuing and permanently disabling symptoms, and that he also developed a severe and persisting reactive psychiatric condition. He has not worked since the accident and alleges that he is effectively unemployable for the rest of his working life. He needs ongoing domestic care and assistance, and will require considerable future medical assistance and pharmaceuticals. The defendant denies that Mr Clifton suffered any major or permanently disabling injury, that the effects of the accident were temporary, and only affected his earning capacity for a short period. It was contended that any continuing pain and incapacity is solely due to a regime of haphazard and excessive use of opiate analgesia that has rendered Mr Clifton dependent on opiates with a psychological condition. This treatment was inappropriate and as such its consequences were unforeseeable. Further, Mr Clifton will benefit from a detoxification program that will remedy any incapacity for employment.

4. Mr Clifton claims damages for out-of-pocket expenses, lost income, lost earning capacity, domestic assistance, future medical and pharmacological expenses and various other incidental expenses. He is not entitled to general damages for non-economic loss because the assessment by the Medical Assessment Service (MAS) of the Motor Accidents Authority of NSW of his permanent impairment as a result of his injuries did not satisfy the requisite threshold for such an award: s 131 of the MACA.

5.…

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 Clifton v Dunn

Details

AGLC: Clifton v Dunn [2009] NSWDC 187
Case: [2009] NSWDC 187
Decision Date: 29 May 2009

CaseChat Overview and Summary

The plaintiff, Mr Clifton, brought a claim against the defendant, Mr Dunn, for injuries sustained in a motor accident. The plaintiff alleged that the accident caused him to suffer physiological impairments and a severe psychiatric condition, and that the defendant's negligence was the cause of these injuries. The case was heard in the Supreme Court of Queensland. The primary legal issues before the court were whether the plaintiff's ongoing problems were caused by the injuries or the inappropriate use of opiate analgesia, and if so, what the appropriate amount of damages should be. The court was also required to determine whether the plaintiff was entitled to compensation for past and future medical expenses, economic loss, domestic care and assistance, and other miscellaneous costs and expenses.

The court found that the plaintiff's injuries were indeed caused by the motor accident and not by the use of opiate analgesia. The court noted that the plaintiff's psychiatric condition was a direct result of the injuries sustained in the accident, and that the use of opiates had exacerbated the condition but was not the primary cause. The court also found that the plaintiff was entitled to compensation for past and future medical expenses, economic loss, and domestic care and assistance. The court awarded the plaintiff a total of $1,430,860.50 in damages, which included compensation for these expenses as well as other miscellaneous costs and expenses.

The court ordered that judgment be entered in favour of the plaintiff and against the defendant in the amount of $1,430,860.50. The court also ordered that the defendant pay the plaintiff's costs of the proceeding on the ordinary basis, and granted leave to the plaintiff to apply in relation to interest and costs. The court's decision provides guidance on the appropriate amount of damages to be awarded in cases of motor accidents resulting in physiological impairments and psychiatric conditions.

Orders

Orders of the court

1. Judgment for the plaintiff for $1,430,860.50 2. Defendant to pay the plaintiff's costs on the ordinary basis 3. Leave to apply in relation to interest and 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:	Clifton V Dunn [2009] NSWDC 187
HEARING DATE(S):	20, 21, 22, 23, 24, 27, 29 and 30 April 2009
JUDGMENT DATE:	29 May 2009
JURISDICTION:	Civil jurisdiction
JUDGMENT OF:	Johnstone DCJ
DECISION:	1. Judgment for the plaintiff for $1,430,860.50 2. Defendant to pay the plaintiff’s costs on the ordinary basis 3. Leave to apply in relation to interest and costs
CATCHWORDS:	DAMAGES - motor accident causing injuries resulting in physiological impairments and a severe psychiatric condition - causation: whether plaintiff’s ongoing problems were caused by the injuries or the inappropriate use of opiate analgesia - past and future medical expenses, economic loss and domestic care and assistance - other miscellaneous costs and expenses
LEGISLATION CITED:	Motor Accidents Compensation Act 1999 (NSW)
CASES CITED:	3WJ Pty Ltd v Kanj [2008] NSWCA 321 March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 Mahony v J Kruschich (Demolitions) Pty Limited [1985] HCA 37 McGroder v Maguire [2002] NSWCA 261
PARTIES:	Corey Thomas Clifton (Plaintiff) Janice Dunn (Defendant)
FILE NUMBER(S):	3167/07
COUNSEL:	Mr H Marshall SC with Mr D J Price (Plaintiff) Mr P O’Connor (Defendant)
SOLICITORS:	Oliver Campbell Lawyers (Plaintiff) Holman Webb (Defendant)