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Davies v Nilsen

Davies v Nilsen

Case [2017] VSCA 202 11 August 2017

Causation

Appeal

Compensatory Damages

Accident Compensation

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0149

DIANNE DAVIES	Applicant
v
JUDY NILSEN	Respondent

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JUDGES:	OSBORN, BEACH JJA and KEOGH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 June 2017
DATE OF JUDGMENT:	11 August 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 202
JUDGMENT APPEALED FROM:	[2016] VSC 557 (Macaulay J)

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ACCIDENT COMPENSATION – Appeal – Transport accident – Personal injuries – Causation – Whether transport accident was a cause of injuries to the plaintiff’s left knee and low back – No error in judge’s conclusion that transport accident not shown to be a cause of plaintiff’s low back condition – Plaintiff’s left knee condition shown on whole of evidence to be causally related to transport accident – Application for leave to appeal granted – Appeal allowed – Matter remitted for rehearing and determination.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A G Uren QC with Mr A D B Ingram	Slater and Gordon
For the Respondent	Mr J Ruskin QC with Ms R L Kaye	Solicitor to Transport Accident Commission

OSBORN JA:

BEACH JA:
KEOGH AJA:

This application arises out of the determination of a common law claim for damages for personal injury resulting from a motor car accident which occurred on 22 November 1995.

On that day the applicant, who was then 24 years’ old, was the driver of a stationary motor car which was struck from the rear as the third in a five car pileup hit in successive impacts. The force of the collision was substantial. The applicant said that her car was written off and that she subsequently observed cracks between the back doors and the back windscreen on both sides of the car. The applicant was thrown forward against her seatbelt and then, as her own car struck a stationary vehicle in front of her, she was thrown back and her head struck the car seat. In addition as she was thrown forward her knees struck the air-conditioning unit under the dashboard.

There is no dispute that as a result the applicant suffered a whiplash type injury with resultant soft tissue damage to her neck, upper back and left shoulder. She also suffered grazing and bruising to her knees.

Following the accident she attended her local general medical practice, St Helena Mediplex in Diamond Creek (‘St Helena’s’), and was absent from her work as an office manager for some two weeks. At the time she had been in steady employment for a number of years although she had suffered from chronic fatigue syndrome in her early adulthood.

The injuries described above are entirely consistent with:

(a) the causal mechanism of the motor car accident;

(b) the applicant’s appearance after the accident. The applicant was able to get out of her car and a police officer attending the scene noted that no-one appeared to be injured;

(c) the notes made by doctors at St Helena’s over the ensuing months including, in particular, the first note made on 23 November…

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 Davies v Nilsen

Details

AGLC: Davies v Nilsen [2017] VSCA 202
Case: [2017] VSCA 202
Decision Date: 11 August 2017

CaseChat Overview and Summary

Davies v Nilsen was a case heard in the Supreme Court of New South Wales. The plaintiff, Davies, sought compensation for injuries sustained in a transport accident. The defendant, Nilsen, contested the claim, arguing that the injuries were not caused by the accident. The court was tasked with determining the causation of the plaintiff’s injuries to his left knee and low back in relation to the accident.

The legal issues before the court included whether the transport accident was a cause of the plaintiff’s injuries to his left knee and low back. The court had to examine the evidence presented and determine if there was a causal link between the accident and the injuries. The judge initially found that the transport accident was not shown to be a cause of the plaintiff’s low back condition but was causally related to his left knee injury. The plaintiff appealed the decision, arguing that the judge erred in concluding that the accident was not a cause of his low back condition.

The court found that there was no error in the judge’s conclusion that the transport accident was not shown to be a cause of the plaintiff’s low back condition. However, the court did find that the evidence as a whole demonstrated that the plaintiff’s left knee condition was causally related to the transport accident. As such, the court granted the plaintiff’s application for leave to appeal and allowed the appeal. The matter was remitted for rehearing and determination by a different judge.

Orders