De Blank v Stemberger - [2000] WASCA 358

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: DE BLANK -v- STEMBERGER [2000] WASCA 358

CORAM: KENNEDY J
WALLWORK J
MURRAY J

HEARD: 9 JUNE 2000

DELIVERED : 22 NOVEMBER 2000

FILE NO/S: FUL 186 of 1999

BETWEEN: CATHARINA DE BLANK
Appellant (Plaintiff)
AND
NATALIE ANA STEMBERGER
Respondent (Defendant)

Catchwords:

Damages - Personal injuries - General damages for non-pecuniary loss - Proportion of "a most extreme case" - Adequacy of award for future economic loss

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3C

Result:

Appeal allowed
Damages increased from $34,925 to $45,875

Representation:

Counsel:

Appellant (Plaintiff) : Mr J R Criddle
Respondent (Defendant) : Mr K N Allan

Solicitors:

Appellant (Plaintiff) : J R Criddle
Respondent (Defendant) : K N Allan

Case(s) referred to in judgment(s):

Hendrie v Rusli [2000] WASCA 249
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Southgate v Waterford (1990) 21 NSWLR 427
Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997

Case(s) also cited:

Miller v Jennings (1954) 92 CLR 190
Mullins Investments Pty Ltd v Richard Ellis (WA) Pty Ltd; unreported; SCt of WA (Master White); Library No 8608; 30 November 1990
State Government Insurance Commission v Hitchcock; unreported; FCt SCt of WA; Library No 970089; 11 March 1997
Warren v Coombes (1979) 142 CLR 531

KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Murray J. I am in agreement with those reasons and with the order which his Honour proposes.
WALLWORK J: I agree with the reasons for judgment of Murray J and to the order proposed by his Honour.
MURRAY J: On 9 August 1995 the appellant was driving her motor vehicle on Hay Street, Subiaco. As she entered an intersection controlled by traffic lights, her vehicle came into collision with a vehicle driven by the respondent, which had entered the intersection against a red light. The appellant was fortunate not to suffer serious injury. Apart from soft tissue injuries of a relatively transient kind, the principal injuries were to her left shoulder and both knees. It appears that the right knee was restored to full health within about six to eight months and the left shoulder was again in a satisfactory state by about a year after the accident. It is the left knee which has caused problems of a substantial kind.
The appellant sued for damages for negligence. The respondent admitted liability and damages were assessed in the District Court, judgment being given on 12 November 1999 in the sum of $34,925. The appellant was awarded her costs up to and including 19 April 1999 and the defendant was awarded the costs of the action thereafter. No doubt that order was made for the usual reason. The trial took place on 27 and 28 October 1999.
The award of $34,925 comprised general non‑pecuniary damages of $5,925, $4,000 for future…

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 De Blank v Stemberger

Details

AGLC: De Blank v Stemberger [2000] WASCA 358
Case: [2000] WASCA 358
Decision Date: 22 NOVEMBER 2000

CaseChat Overview and Summary

The plaintiff, De Blank, sought damages for personal injuries sustained in a motor vehicle accident against the defendant, Stemberger. The case was heard in the Supreme Court of South Australia. The plaintiff argued for an increase in the general damages awarded for non-pecuniary loss and for an adjustment in the assessment of future economic loss, claiming that the current awards were inadequate. The defendant, on the other hand, contended that the awards were fair and appropriately reflected the circumstances of the case.

The court was required to determine whether the original assessment of general damages for non-pecuniary loss was proportionate to a most extreme case and whether the award for future economic loss was adequate. The plaintiff contended that the original assessment undervalued the extent of non-pecuniary loss and future economic loss. The court had to consider the evidence presented regarding the plaintiff's injuries, the impact on their quality of life, and the extent of future economic loss. The defendant argued that the original awards were sufficient and did not require alteration.

The court examined the evidence and concluded that the original award for general damages for non-pecuniary loss was appropriate, reflecting a proportion of a most extreme case. However, in respect of future economic loss, the court found that the original award was inadequate. The court increased the award for future economic loss to reflect the plaintiff's need for ongoing care and support. The court's reasoning was based on a detailed assessment of the medical evidence, the impact of the injuries on the plaintiff's life, and the extent of future economic loss.

The final orders included an increase in the award for future economic loss, while the award for general damages for non-pecuniary loss remained unchanged. The court's decision emphasised the importance of accurately assessing both non-pecuniary and economic losses in personal injury cases.

Orders