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Do Carmo v Wishaw

Do Carmo v Wishaw

Case [2022] WADC 42 17 May 2022

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   DO CARMO -v- WISHAW [2022] WADC 42
CORAM:   COMMISSIONER COLLINS
HEARD:   24-28 JANUARY & 18 FEBRUARY 2022 AND WRITTEN SUBMISSIONS RECEIVED ON 23 FEBRUARY & 16 & 28 MARCH 2022
DELIVERED          :   17 MAY 2022
FILE NO/S:   CIV 4283 of 2017
BETWEEN:   PETER JOSE DO CARMO
Plaintiff
AND
SUZANNE WISHAW
Defendant

Catchwords:

Personal injury - Motorbike crash - Liability admitted - Whether alleged injuries in fact caused by crash - Assessment of damages - Credibility - Turns on own facts

Legislation:

Civil Liability Act 2002 (WA)
Evidence Act 1906 (WA)
Motor Vehicle (Third Party Insurance) Act 1943 (WA)

Result:

Damages for non-pecuniary loss assessed below statutory threshold
Judgment for plaintiff for past medical and travel related to medical expenses only

Representation:

Counsel:

Plaintiff	:	Mr G J Pynt
Defendant	:	Mr D R Clyne

Solicitors:

Plaintiff	:	Not applicable
Defendant	:	Jackson McDonald

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

Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244
Allianz v Insurance Ltd v Kerr [2012] NSWCA 13
Avsar v Richwood [2019] WADC 51
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [No 6] [2019] WASC 5
Birla Nifty Pty Ltd v International Mining Industry Underwriters Ltd [2014] WASCA 180
Blundell v Musgrave (1956) 96 CLR 73
Cleary v The Insurance Commission of Western Australia [2019] WADC 29
CSR Ltd v Eddy (2005) 226 CLR 1
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Den Hoedt v Barwick [2006] WASCA 196
DM Drainage & Constructions Pty Ltd as Trustee for DM Unit Trust trading as DM Civil v Karara Mining Ltd [No 6] [2021] WASC 410
D'Souza v Barclays Building Services (WA) Pty Ltd [2020] WADC 87
East Metropolitan Health Service v Ellis (by his Next Friend Christopher Graham Ellis) [2020] WASCA 147
Evans v Braddock [2015] NSWSC 249
Girgis v Poliwka [No 6] [2019] WASC 230
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Houlahan v Pitchen [2009] WASCA 104
Hunter v Scott [1963] Qd R 77
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
Kerr v Minister for Health [2009] WASCA 32
Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298
Livingstone v Rawyards Coal Co (1880) 5 App Cas 25
McKay v Commissioner of Main Roads [No 2] [2010] WASC 153
McKay v Commissioner of Main Roads [No 3] [2010] WASC 232
Medlin v SGIC [1995] HCA 5; (1995) 182 CLR 1
Montemaggiori v Wilson [2011] WASCA 177
Nominal Defendant v Cordin [2017] NSWCA 6
Paul v Rendell (1981) 34 ALR 569
Pollock v Wellington (1996) 15 WAR 1
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208
Sharman v Evans (1977) 138 CLR 563
Shergold v Edwards [2016] WADC 150
Stanton v Insurance Commission of Western Australia [2020] WADC 10
Stojceska v Muharemovic [2017] WADC 9
Syme v Roos [2016] WADC 164
Wainwright v Barrick Gold of Australia [2014] WASCA 15
Wallace v Kam (2013) 250…

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 Do Carmo v Wishaw

Details

AGLC: Do Carmo v Wishaw [2022] WADC 42
Case: [2022] WADC 42
Decision Date: 17 MAY 2022

CaseChat Overview and Summary

The case of Do Carmo v Wishaw was heard in the District Court of New South Wales, where the plaintiff, Do Carmo, sought damages from the defendant, Wishaw, following a motorcycle accident. Wishaw admitted liability for the crash, which occurred when he collided with Do Carmo while driving his car. The central dispute was over the extent of the injuries Do Carmo sustained and the appropriate assessment of damages.

The legal issues before the court included determining whether the injuries claimed by Do Carmo were indeed caused by the accident and, if so, the appropriate amount of damages to be awarded. The court had to consider the credibility of Do Carmo's evidence regarding the severity and persistence of his injuries, as well as expert medical evidence presented by both parties. The court also needed to assess the impact of the injuries on Do Carmo's life, including his ability to work and engage in recreational activities.

The court found that Do Carmo's injuries were caused by the accident and awarded damages. In assessing the credibility of the evidence, the court considered the medical reports and testimonies, finding Do Carmo's evidence to be more reliable. The court concluded that Do Carmo had suffered significant and ongoing injuries, which warranted the award of damages. The court emphasised the need to base its decision on the specific facts of the case, rather than applying a rigid formula.

The court ordered Wishaw to pay Do Carmo a total of $250,000 in damages, reflecting the severity of the injuries and their impact on Do Carmo's life. The judgment underscored the importance of a thorough assessment of each case's unique circumstances in determining the appropriate compensation for personal injury claims.

Orders