Day v Gascooke No. DCCIV-99-1850 - [2002] SADC 66

DAY v GASCOOKE
[2002] SADC 66
Judge Rice
Civil
Introduction

These proceedings seek an assessment of damages arising from a rear-end motor vehicle collision. Liability is not in issue. Apart from less significant heads of damage, the plaintiff claims that she has suffered a substantial loss of her past and future earning capacity despite earlier work-related injuries, a later work-related injury and two other injuries. She says she retained a residual working capacity despite some earlier disability to the right wrist and thumb. Particularly, the plaintiff planned to become a medical receptionist.
The defendant’s case is that the earlier injuries had deprived her of any earning capacity as at the time of the subject collision. Consequently, so it is submitted, her earning capacity was not further reduced or extinguished as a result of the collision.
A resolution of these issues involves a consideration of the High Court case of Medlin v The State Government Insurance Commission (1994-1995) 182 CLR 1 in the light of factual findings made by me. There are other issues but these are the most important and have consequences upon other aspects of damages.
Circumstances of the motor vehicle collision
At or about 3.00 p.m. on 7th January, 1997, the plaintiff was the driver and sole occupant of a small Daihatsu Charade which was in a stationary position facing west on Grote Street at the traffic lights at its junction with West Terrace, Adelaide. The plaintiff was waiting for the lights to turn green to enable her to do a left-hand turn into West Terrace. Her car was in a position to be the first car to move off. At that time the plaintiff was on her way home from work as a Wards Maid at Wakefield Hospital, Adelaide.
Whilst the plaintiff was in that position, her car was struck from behind by a car being driven by the defendant. Although it is not important, it may well be the case that the defendant thought the plaintiff was going to move off but, in fact, she remained stationary. Both vehicles then moved around the corner on to West Terrace and the drivers exchanged details. There is no suggestion other than that the collision was relatively minor. The photographs (exhibit P6) confirm that position. Those photographs show dents in the boot/hatch and rear bumper bar.
The plaintiff’s evidence concerning her injuries arising from the collision
I find the following facts.
Although there were no immediate symptoms, about half an hour later, by which time she had arrived home, the plaintiff felt pain on both sides of her neck, in her shoulders and down her back right down to her waist. She said it was even worse the next day.
She did not go to her general practitioner, Dr Westlake, until the day after the collision. He gave her Capadex and Panadeine Forte if the pain was really bad. She was referred to a physiotherapist whom she saw the following day at which time the pain was the…

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.

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Details

Case: [2002] SADC 66
Decision Date: 27 May 2002

CaseChat Overview and Summary

This case involves a claim for damages arising from a motor vehicle collision. The plaintiff, Day, was rear-ended by the defendant, Gascooke, and suffered injuries that led to a substantial loss of her past and future earning capacity. The defendant argued that the plaintiff's earlier injuries had already deprived her of any earning capacity, and therefore, her earning capacity was not further reduced or extinguished as a result of the collision. The court had to decide whether the plaintiff was entitled to an award for past and future loss of earning capacity.

The court found that the plaintiff had indeed suffered a substantial loss of her past and future earning capacity due to the collision. The court relied on the High Court case of Medlin v The State Government Insurance Commission (1994-1995) 182 CLR 1, which established that a plaintiff is not precluded from recovering damages for loss of earning capacity merely by reason of the fact that he or she voluntarily left employment which was unsuitable or in which he or she was unhappy. The court found that the plaintiff came within the first limb of Medlin's case, as the premature termination of her employment was the product of the plaintiff's loss of earning capacity brought about by the collision. The court also found that the plaintiff would have been entitled to an award even if she had resigned before the collision and the injuries from the collision prevented her from exercising her residual earning capacity.

The court assessed the plaintiff's non-economic loss, or pain and suffering, and found that the appropriate numerical value was 7. The court applied this value to the prescribed sum under s.35A of the Wrongs Act, 1936 (SA) (as amended) and awarded $10,850.00 for past and future non-economic loss. The court also awarded $26,000.00 for past economic loss, discounted by 50% to account for contingencies and uncertainties, and $6,100.00 in interest on the past economic loss. For future economic loss, the court awarded $48,000.00, discounted by 60%, and no interest. The court also awarded $700.00 for past and future medical expenses, $65.00 in interest on the past medical expenses, and $800.00 for gratuitous housekeeping services, with $260.00 in interest. The total award was $92,775.00. The court will hear the parties on the question of costs.

Orders