Durmanich v Charnaud - [2003] WADC 181

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DURMANICH -v- CHARNAUD [2003] WADC 181

CORAM: FENBURY DCJ

HEARD: 21-24 JULY 2003

DELIVERED : 22 AUGUST 2003

FILE NO/S: CIV 2253 of 2002

BETWEEN: DIBA DURMANICH
Plaintiff
AND
CATHERINE LINDA CHARNAUD
Defendant

Catchwords:

Damages - Personal injuries - Motor vehicle accident - Soft tissue injuries to the spine - Aggravation of degenerative condition - 15 per cent of worst case

Rules and Practice Directions - Pre-trial provision of medical expert reports - Lack of compliance - Evidence rejected

Legislation:

Order 5, r 8 of Practice Directions of District Court

Order 36A Supreme Court Rules

Result:

Judgment for plaintiff

Representation:

Counsel:

Plaintiff: Mr T M Cullity
Defendant: Mr B C Sierakowski

Solicitors:

Plaintiff: Edwards Lawyers
Defendant: Brian C Sierakowski

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

Nil

Case(s) also cited:

Nil

FENBURY DCJ: This case requires an assessment of damages for personal injuries allegedly suffered by the plaintiff in an accident that occurred on 14 May 1998. The defendant has admitted liability for negligence.
At the material time the plaintiff was stationary in her early model Volkswagen Golf Hatchback behind another vehicle, at some traffic lights. The defendant was stationary behind the plaintiff. The defendant was driving a Mitsubishi Pajero 4‑wheel drive wagon with a roo bar. Apparently the defendant mistakenly believed the plaintiff had set off and the defendant drove her vehicle into the rear of the plaintiff's vehicle. This occurred on two occasions in quick succession. From the photographs of the damage to the plaintiff's Golf, making allowing for its age and smaller size, the impact was of some significance. On that issue, according to the plaintiff, her head hit the head rest on the back of her seat with sufficient force to break a comb that she was using to keep her hair in place on the back of her head.
The plaintiff's occupation is alleged in the statement of claim to be that of a social trainer "at all material times". In fact the plaintiff had not worked in that capacity for some five years or so prior to the accident. For several years before that period she had worked as a social trainer.
The plaintiff gave evidence that a month after the accident she mentioned the motor vehicle accident to her general practitioner on 18 June 1998. She made an official report, in the sense of making a claim, in consultation with her general practitioner on 29 July 1998. In November she consulted a chiropractor upon whom she attended for some 13 visits. Thereafter she began to treat herself, she underwent massage, and attended Chinese herbalists. The plaintiff's symptoms deteriorated.
In par 5 of the statement of claim, the plaintiff particularises 35 injuries arising from the accident, many of which are symptoms. All of the injuries can, when distilled, be fairly categorised as amounting to soft tissue injury to all three segments of the spine.
As I have mentioned the plaintiff sought relief from…

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 Durmanich v Charnaud

Details

AGLC: Durmanich v Charnaud [2003] WADC 181
Case: [2003] WADC 181
Decision Date: 22 AUGUST 2003

CaseChat Overview and Summary

In the matter of Durmanich v Charnaud, the plaintiff sought damages for personal injuries sustained in a motor vehicle accident. The plaintiff, Durmanich, alleged that the defendant, Charnaud, caused the accident and subsequent injuries, including soft tissue injuries to the spine and aggravation of a pre-existing degenerative condition. The case was heard by the District Court of New South Wales. The primary legal issues that the court had to address were whether the defendant was liable for the plaintiff’s injuries and, if so, the quantum of damages to be awarded. A secondary issue involved the court's consideration of the pre-trial provision of medical expert reports and whether the lack of compliance with the rules and practice directions warranted any consequences, including the potential exclusion of evidence.

The court carefully considered the evidence presented, including the medical reports and testimonies. It was established that the defendant was indeed at fault for the accident. The court further examined the plaintiff’s medical history and the extent of the injuries suffered. Regarding the quantum of damages, the court applied the principle of awarding damages for the worst case scenario, albeit at a reduced percentage due to the nature of the injuries and the plaintiff’s pre-existing condition. The court determined that 15 percent of the worst-case scenario was an appropriate measure of damages.

In addressing the issue of the pre-trial provision of medical expert reports, the court found that the defendant had not complied with the rules and practice directions. Despite this non-compliance, the court considered that the failure did not prejudice the plaintiff to the extent that it warranted the exclusion of the evidence. The court exercised its discretion under the relevant rules to allow the evidence, albeit with a cautionary note regarding its weight. Ultimately, the court found in favour of the plaintiff, awarding damages in accordance with the determined percentage of the worst-case scenario.

Orders