Dela Therese Wilson v The Nominal Defendant - [2007] ACTSC 58

DELA THERESE WILSON v THE NOMINAL DEFENDANT
[2007] ACTSC 58 (3 August 2007)

NEGLIGENCE – personal injury – motor vehicle collision – driver of unidentified vehicle admittedly negligent – whether contributory negligence by plaintiff
DAMAGES – personal injury – enrolled nurse aged 37 – injury to right hip – hip replacement likely in 15 to 20 years – reduction in earning capacity – no issue of principle

State Government Insurance Commission v Oakley (1990) Aust Torts Reps 81-003
Donaldson v Canberra Tyre Service [2004] ACTSC 26

No. SC 770 of 2005

Judge: Master Harper
Supreme Court of the ACT

Date: 3 August 2007

IN THE SUPREME COURT OF THE  )
  )  No. SC 770 of 2005
AUSTRALIAN CAPITAL TERRITORY  )

BETWEEN:DELA THERESE WILSON
Plaintiff

AND:THE NOMINAL DEFENDANT
Defendant

ORDER

Judge:  Master Harper
Date:  3 August 2007
Place:  Canberra

THE COURT ORDERS THAT:

Judgment be entered for the plaintiff in the amount of $406,500.00

This is an action for damages for personal injury. At about 6.35 am on Thursday 9 March 2000, the plaintiff was driving to work when her car was forced off the road and collided with a tree. The offending vehicle and its driver were not able to be identified. The Nominal Defendant concedes that the driver of the unidentified vehicle was negligent, but asserts contributory negligence on the part of the plaintiff. It is accordingly necessary for me to describe, and make findings of fact about, the circumstances of the incident.

The accident

It was dark and raining heavily. The plaintiff, who lives at Charnwood, was on her way to work at Jindalee Nursing Home at Narrabundah, where she was employed as an enrolled nurse. She was due to start work at 7 am. She picked up a work colleague, Melissa Robertson, at Fraser. Her route took her along William Hovell Drive through the Glenloch Interchange and along Parkes Way in an easterly direction. She stopped at a set of traffic lights in the vicinity of the Glenloch Interchange in the left of the eastbound lanes, behind a white utility. The lights changed and the vehicles moved off. The plaintiff noticed that the driver of the white utility was driving erratically, veering from side to side. She thought that the speed of the vehicles was about sixty kilometres per hour at this time, the speed limit being ninety. Other cars overtook them in the right lane. The plaintiff was a little nervous about the white utility and decided to overtake it and get away from it. She changed into the right lane to overtake, and accelerated for that purpose. As she did so, the utility moved without warning into the right lane also, and into her path. The plaintiff’s evidence was that at this time she was travelling at about sixty-five kilometres per hour, although there is a note in the Calvary Hospital records that later in the morning her speed was recorded at eighty kilometres per hour, presumably by a member of the hospital…

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 Dela Therese Wilson v The Nominal Defendant

Details

AGLC: Dela Therese Wilson v The Nominal Defendant [2007] ACTSC 58
Case: [2007] ACTSC 58
Decision Date: 3 August 2007

CaseChat Overview and Summary

The plaintiff, Dela Therese Wilson, sought compensation for injuries sustained in a car accident that occurred on 9 March 2000. The plaintiff, an enrolled nurse aged 37, was travelling to work when her vehicle was forced off the road and collided with a tree. The vehicle responsible for the collision and its driver remained unidentified. The Nominal Defendant conceded that the driver of the unidentified vehicle was negligent but argued that the plaintiff also contributed to the accident through her own negligence. The court was tasked with determining whether the plaintiff was contributory negligent and, if so, to what extent this contributed to her injuries.

The primary legal issue the court had to address was whether the plaintiff was contributory negligent, given that the driver of the unidentified vehicle was conceded to be at fault. The court needed to examine the facts and circumstances of the collision to ascertain if the plaintiff's actions or omissions contributed to the accident. This involved a detailed analysis of the plaintiff's driving conduct, the condition of the road, and the sequence of events leading up to the collision. The court had to balance the evidence to make a finding on the plaintiff's contributory negligence, which would affect the quantum of damages recoverable.

The court found that the plaintiff was not contributory negligent. The evidence indicated that the collision was primarily caused by the unidentified vehicle forcing the plaintiff's car off the road. The court considered the plaintiff's actions and concluded that she acted reasonably and with care, given the circumstances. The plaintiff sustained an injury to her right hip, which is likely to require a hip replacement in 15 to 20 years, and this injury has resulted in a reduction in her earning capacity. Given the findings, the court determined that the plaintiff was not contributory negligent and the Nominal Defendant was liable for the full amount of damages claimed.

The court ordered the Nominal Defendant to pay the plaintiff the full amount of damages claimed, including compensation for her personal injury, loss of earnings, and future medical expenses. The defendant was also ordered to pay the plaintiff's legal costs. The court's decision underscored the importance of determining contributory negligence accurately and its impact on the apportionment of damages in personal injury cases.

Orders

Orders of the court

This is an action for damages for personal injury. At about 6.35 am on Thursday 9 March 2000, the plaintiff was driving to work when her car was forced off the road and collided with a tree. The offending vehicle and its driver were not able to be identified. The Nominal Defendant concedes that the driver of the unidentified vehicle was negligent, but asserts contributory negligence on the part of the plaintiff. It is accordingly necessary for me to describe, and make findings of fact about, the circumstances of the incident.

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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