Dennis v Australian Capital Territory - [2005] ACTSC 118

CHERYL MARIE DENNIS v AUSTRALIAN CAPITAL TERRITORY
[2005] ACTSC 118 (16 November 2005)

EX TEMPORE JUDGMENT

DAMAGES – personal injury – motor vehicle rear-end collision – whiplash injury to neck, shoulder and low back – no issue of principle.

No. SC 332 of 2000

Judge: Master Harper
Supreme Court of the ACT

Date: 16 November 2005

IN THE SUPREME COURT OF THE  )
  )  No. SC 332 of 2000
AUSTRALIAN CAPITAL TERRITORY  )

BETWEEN:CHERYL MARIE DENNIS
Plaintiff

AND:AUSTRALIAN CAPITAL TERRITORY
Defendant

ORDER

Judge:  Master Harper
Date:  16 November 2005
Place:  Canberra

THE COURT ORDERS THAT:

Judgement be entered for the plaintiff in the sum of $264,600.

The defendant pay the plaintiff’s costs.

The plaintiff’s claim is one for damages for personal injuries arising out of a motor accident which occurred on 26 July 1994 at the intersection of Chewings Street and Belconnen Way, Page when the plaintiff was a front seat passenger in a Holden Barina, being driven by a friend and work colleague who was driving her to work. The Barina stopped at the intersection of Belconnen Way and was struck from behind by a vehicle owned by the Territory and driven by a Territory employee. There is no issue that the collision was entirely due to the negligence of the driver of the Territory vehicle.
The collision was described by the plaintiff in her evidence as a relatively minor impact and it is so described elsewhere in the evidence, with the exception of a history recorded by one of the doctors which I can only take reflected some misunderstanding on the part of the doctor as to its severity. It appears from the photographs of the damaged Barina car that the impact was to the middle of the rear bumper bar, if that is the appropriate term to describe the part of the car which was struck and damaged. The damage appears from the photographs to me, as a person having no expertise in matters of that nature, to have been relatively minor.
The plaintiff was born on 22 March 1957 and was 37 at the date of the accident. She is now 48. She grew up and went to school in Canberra and left school after Year 10. She has no tertiary qualifications but has worked as a public servant with the Department of Defence since 1981, that is for more than 24 years. She has been married twice. She first married at about 20 and was divorced after 10 years and has one daughter from that marriage. She married again in 1988 and separated from her second husband in December 1999. She now lives in a relationship with a Mr Lance Hickey and has lived with him since early 2004. Her daughter now aged 22, and her son-in-law live in the same house at Gordon, a Canberra suburb.
The plaintiff had had some health problems before the collision. In the middle 1980s she had been treated by Dr Danta, a neurologist, for migraine headaches.…

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: [2005] ACTSC 118
Decision Date

CaseChat Overview and Summary

Cheryl Marie Dennis sued the Australian Capital Territory (ACT) for damages resulting from a personal injury sustained in a motor vehicle accident. The incident occurred on 26 July 1994, when the plaintiff, a front-seat passenger in a Holden Barina, was struck from behind by a vehicle owned by the Territory and driven by an employee. The plaintiff suffered whiplash injuries to her neck, shoulder, and low back. The defendant admitted liability for the accident, which was solely due to the negligence of its employee. The legal issues before the court were the extent and causation of the plaintiff's injuries and the appropriate quantum of damages to be awarded.

The court examined the medical evidence, which indicated that the plaintiff had pre-existing health issues but had managed her symptoms relatively well until the accident. The plaintiff experienced immediate pain and numbness in her right arm following the collision. Over time, her symptoms persisted, necessitating ongoing treatment with an acupuncturist. The medical experts agreed that the plaintiff's current condition was more likely than not related to the 1994 accident, despite differing opinions on the specifics of her treatment and prognosis. The court concluded that the plaintiff's symptoms were genuine and causally linked to the motor vehicle collision.

In determining the quantum of damages, the court considered the plaintiff's general damages, past and future treatment expenses, economic loss, and domestic assistance. The court awarded the plaintiff $55,000 for general damages, apportioned equally between the past and future. It also awarded $47,000 for past out-of-pocket expenses, $60,000 for future treatment expenses, $28,600 for past loss of earnings, and $27,000 for future loss of earnings. Additionally, the court allowed $16,000 for past domestic assistance, $4,000 in interest on that amount, and $20,000 for future domestic assistance. The total damages awarded were $264,600, with the defendant ordered to pay the plaintiff's costs.

Orders