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Cole-Herring v Bourke

Cole-Herring v Bourke

Case [2019] NSWDC 391 9 August 2019

Negligence

Compensatory Damages

Admissibility of Evidence

Expert Evidence

Tort Law

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District Court

New South Wales

Medium Neutral Citation: Cole-Herring v Bourke [2019] NSWDC 391
Hearing dates: 8, 9, 10, 11 July 2019
Date of orders: 09 August 2019
Decision date: 09 August 2019
Jurisdiction: Civil
Before: Judge Levy SC
Decision:
1. Verdict and judgment for the plaintiff in the sum of $623,032.25;

2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;

3. The exhibits may be returned;
4. Liberty to apply on 7 days’ notice if further or other orders are required.
Catchwords: TORTS – negligence – motor vehicle accident; DAMAGES – assessment of claimed heads of damage – assessment of reliability of expert medical opinions
Legislation Cited: Civil Liability Act 2002 (NSW), s 5D, s 5E, s 15B
Evidence Act 1995 (NSW), s 60, s 128
Motor Accidents Compensation Act 1999 (NSW), s 109, s 126, s 136, s 141B
Uniform Civil Procedure Rules 2005, r 31.23; r 31.27, Sch 7, cl 3(d), Sch 7 cl 5(c)
Cases Cited: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Avopiling Pty Ltd v Bosevski [2018] NSWCA 146
Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443
Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343
Cupac v Cannone [2015] NSWCA 114
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
ECS Group (Australia) Pty Ltd v Hobby [2014] 8 NSWCA 199
Graham v Baker (1961) 106 CLR 340; [1961] HCA 48
Larson v Commissioner of Police [2004] NSWCA 126
Majkic v Bonnano [2008] NSWCA 253
Manly Municipal Council v Skene [2002] NSWCA 385
Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5
Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60
Penrith City Council v Parks [2004] NSWCA 201
Sampco Pty Ltd v Wurth [2015] NSWCA 117
State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536
Strinic v Singh [2009] NSWCA 15
White v Benjamin [2015] NSWCA 75
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; [1995] HCA 53
Category: Principal judgment
Parties: Emily Cole-Herring (Plaintiff)
Joshua Bourke (Defendant)
Representation:
Counsel:
Mr J Beran with Mr Grimes (Plaintiff)
Mr J Guihot (Defendant)
Solicitors:
CMC Lawyers (Plaintiff)
Moray & Agnew (Defendant)

File Number(s): 2017/361265
Publication restriction: None

Judgment

Table of Contents

Factual background and nature of case

[1] – [6]

Issues

[7]

Evidence overview

[8] – [9]

Credibility and reliability of testimony

[10] – [59]

The plaintiff

[11] – [31]

Ms Cole

[32] – [35]

Reliability of aspects of defendant’s medical reports

[36] – [59]

Facts

[60] – [183]

(1) Plaintiff’s pre-accident background

[61] – [63]

(2) Pre-accident health

[64] – [80]

(3) Pre-accident work history

[81] – [86]

(4) Circumstances of injury

[87] – [96]

(5) Injuries and initial treatment as documented

[97] – [105]

(6) Subsequent treatment

[106] – [110]

(7) Medical and allied reviews

[111] – [112]

(8) Resolution of conflicting medical opinions

[113] – [121]

(9) Resolution of conflicting occupational therapy…

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 Cole-Herring v Bourke

Details

AGLC: Cole-Herring v Bourke [2019] NSWDC 391
Case: [2019] NSWDC 391
Decision Date: 09 August 2019

CaseChat Overview and Summary

The case of Cole-Herring v Bourke arose from a motor vehicle accident where the plaintiff, Cole-Herring, sought damages for injuries sustained from the defendant, Bourke. The dispute centred on the liability of the defendant for the accident and the extent of damages, including medical expenses, loss of income, and pain and suffering. The matter was heard in the Supreme Court of Queensland.

The primary legal issues the court had to address were the determination of the defendant's liability for the accident and the assessment of the plaintiff's claimed damages. This involved examining the reliability and weight to be given to expert medical opinions provided by both parties. The court also had to consider the credibility and consistency of the plaintiff's evidence regarding the impact of the accident on her physical and psychological health.

The court found that the defendant was indeed liable for the accident, having breached the duty of care owed to the plaintiff. In assessing the damages, the court meticulously evaluated the expert medical opinions presented, focusing on their reliability and relevance to the plaintiff's condition and future needs. The court determined that the plaintiff's claims for damages were substantiated and awarded her the sum of $623,032.25. The court also ordered the defendant to pay the plaintiff's costs on the ordinary basis, unless otherwise directed. The exhibits were to be returned, and the plaintiff was granted liberty to apply for further or other orders within seven days’ notice.

Orders

Orders of the court

1. Verdict and judgment for the plaintiff in the sum of $623,032.25;

2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;

3. The exhibits may be returned;

4. Liberty to apply on 7 days’ notice if further or other orders are required.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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Citations

Cole-Herring v Bourke [2019] NSWDC 391

Cases Citing This Decision

No citing cases yet.

Cases Cited

Avopiling Pty Ltd v Bosevski [2018] NSWCA 146
Citation 1 (Para 246)

…er cent on account of the potential adverse vicissitudes that have been identified and for which allowance must be made: Avopiling Pty Ltd v Bosevski [2018] NSWCA 146, at [153] – [154].…
SampCo Pty Ltd v Wurth [2015] NSWCA 117
Citation 2 (Para 220)

…most other medical specialties to give such opinions, their opinions on that topic must necessarily be given limited weight: Sampco Pty Ltd v Wurth [2015] NSWCA 117, at [83]; Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443, at [93].…
Cupac v Cannone [2015] NSWCA 114
Citation 3 (Para 38)

…The difficulties in that approach are well recognised: Cupac v Cannone [2015] NSWCA 114, at [18]; Manly Municipal Council v Skene [2002] NSWCA 385 , at [21] – [22]. In such circumstances, the reports must be analysed for acceptability according to the reasoning contained within them and in accordance with who has t…
White v Benjamin [2015] NSWCA 75
Citation 4 (Para 232)

…iff were necessary as a result of an accident-related incapacity, and would have otherwise needed to have been obtained at a cost: White v Benjamin [2015] NSWCA 75, at [63].…
Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443
Citation 5 (Para 220)

…opinions on that topic must necessarily be given limited weight: Sampco Pty Ltd v Wurth [2015] NSWCA 117, at [83]; Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443, at [93].…
Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343
Citation 6 (Para 222)

…reliable insight into her past domestic care needs when compared to the evidence of Dr Pierides: Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343, at [55].…
Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Citation 7 (Para 216)

…ouncil v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] – [27].…
Strinic v Singh [2009] NSWCA 15
Citation 8 (Para 78)

…ed expert medical evidence is to the effect that there could be multiple indications for prescribing such drugs: T204.24 – T204.31; Strinic v Singh [2009] NSWCA 15.…
Majkic v Bonnano [2008] NSWCA 253
Citation 9 (Para 38)

…eptability according to the reasoning contained within them and in accordance with who has the onus of proof on particular issues: Majkic v Bonnano [2008] NSWCA 253, at [26], following Larson v Commissioner of Police [2004] NSWCA 126, at [48].…
Larson v Commissioner of Police [2004] NSWCA 126
Citation 10 (Para 38)

…cordance with who has the onus of proof on particular issues: Majkic v Bonnano [2008] NSWCA 253, at [26], following Larson v Commissioner of Police [2004] NSWCA 126, at [48].…
Penrith City Council v Parks [2004] NSWCA 201
Citation 11 (Para 216)

…s is a case where the assessment of a buffer sum would be a more appropriate method of assessing future economic loss: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] – [27…
Manly Municipal Council v Skene [2002] NSWCA 385
Citation 12 (Para 38)

…The difficulties in that approach are well recognised: Cupac v Cannone [2015] NSWCA 114, at [18]; Manly Municipal Council v Skene [2002] NSWCA 385 , at [21] – [22]. In such circumstances, the reports must be analysed for acceptability according to the reasoning contained within them and in accordance with who has t…
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Citation 13

…CA 443 Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343 Cupac v Cannone [2015] NSWCA 114 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 ECS Group (Australia) Pty Ltd v Hobby [2014] 8 NSWCA 199 Graham v Baker (1961) 106 CLR 340; [1961] HCA 48 Larson v Commissioner of Police [2004] NSWCA 126 Majkic…
State of New South Wales v Moss [2000] NSWCA 133
Citation 14 (Para 200)

…assessment is not possible, nevertheless, an attempt must be undertaken at making a monetary assessment, even by way of a buffer: State of NSW v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536, at [72].…
Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53
Citation 15 (Para 217)

…tudes should be regarded as being necessarily harmful or adverse to the plaintiff: Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; [1995] HCA 53, at [19].…
Mount Isa Mines Ltd v Pusey [1970] HCA 60
Citation 16 (Para 5)

…effects of the subject accident. In that regard the defendant must take the plaintiff as she is found: Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60, at [18].…
Graham v Baker [1961] HCA 48
Citation 17 (Para 198)

…een productive of financial loss: Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5; Graham v Baker (1961) 106 CLR 340; [1961] HCA 48.…
Medlin v State Government Insurance Commission [1995] HCA 5
Citation 18 (Para 198)

…r inability to pursue that earning capacity has been productive of financial loss: Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5; Graham v Baker (1961) 106 CLR 340; [1961] HCA 48.…

Legislation Cited

Civil Liability Act 2002 (TAS) 5D
2 mentions (from Para 6)
Evidence Act 1995 (Cth) 60
2 mentions (from Para 69)
Motor Accidents Compensation Act 1999 (NSW) 109
2 mentions (from Para 6)
Uniform Civil Procedure Rules 2005 (NSW) 31.23
1 mention

Medium Neutral Citation:	Cole-Herring v Bourke [2019] NSWDC 391
Hearing dates:	8, 9, 10, 11 July 2019
Date of orders:	09 August 2019
Decision date:	09 August 2019
Jurisdiction:	Civil
Before:	Judge Levy SC
Decision:	1. Verdict and judgment for the plaintiff in the sum of $623,032.25; 2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered; 3. The exhibits may be returned; 4. Liberty to apply on 7 days’ notice if further or other orders are required.
Catchwords:	TORTS – negligence – motor vehicle accident; DAMAGES – assessment of claimed heads of damage – assessment of reliability of expert medical opinions
Legislation Cited:	Civil Liability Act 2002 (NSW), s 5D, s 5E, s 15B Evidence Act 1995 (NSW), s 60, s 128 Motor Accidents Compensation Act 1999 (NSW), s 109, s 126, s 136, s 141B Uniform Civil Procedure Rules 2005, r 31.23; r 31.27, Sch 7, cl 3(d), Sch 7 cl 5(c)
Cases Cited:	Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 Avopiling Pty Ltd v Bosevski [2018] NSWCA 146 Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443 Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343 Cupac v Cannone [2015] NSWCA 114 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 ECS Group (Australia) Pty Ltd v Hobby [2014] 8 NSWCA 199 Graham v Baker (1961) 106 CLR 340; [1961] HCA 48 Larson v Commissioner of Police [2004] NSWCA 126 Majkic v Bonnano [2008] NSWCA 253 Manly Municipal Council v Skene [2002] NSWCA 385 Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5 Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60 Penrith City Council v Parks [2004] NSWCA 201 Sampco Pty Ltd v Wurth [2015] NSWCA 117 State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536 Strinic v Singh [2009] NSWCA 15 White v Benjamin [2015] NSWCA 75 Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; [1995] HCA 53
Category:	Principal judgment
Parties:	Emily Cole-Herring (Plaintiff) Joshua Bourke (Defendant)
Representation:	Counsel: Mr J Beran with Mr Grimes (Plaintiff) Mr J Guihot (Defendant) Solicitors: CMC Lawyers (Plaintiff) Moray & Agnew (Defendant)
File Number(s):	2017/361265
Publication restriction:	None

Factual background and nature of case	[1] – [6]
Issues	[7]
Evidence overview	[8] – [9]
Credibility and reliability of testimony	[10] – [59]
The plaintiff	[11] – [31]
Ms Cole	[32] – [35]
Reliability of aspects of defendant’s medical reports	[36] – [59]
Facts	[60] – [183]
(1) Plaintiff’s pre-accident background	[61] – [63]
(2) Pre-accident health	[64] – [80]
(3) Pre-accident work history	[81] – [86]
(4) Circumstances of injury	[87] – [96]
(5) Injuries and initial treatment as documented	[97] – [105]
(6) Subsequent treatment	[106] – [110]
(7) Medical and allied reviews	[111] – [112]
(8) Resolution of conflicting medical opinions	[113] – [121]
(9) Resolution of conflicting occupational therapy…