Finnamore v Beveridge - [2001] WADC 110

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: BUNBURY

CITATION: FINNAMORE -v- BEVERIDGE & ANOR [2001] WADC 110

CORAM: NISBET DCJ

HEARD: 3 AND 4 APRIL 2001

DELIVERED : 17 MAY 2001

FILE NO/S: CIV 36 of 1999

BETWEEN: TAMARA FINNAMORE
Plaintiff
AND
WANDA LOUISA BEVERIDGE
First Defendant
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Second Defendant

Catchwords:

Negligence - Motor vehicle accident - Statutory warranty - Unlicensed driver - Driver allegedly under the influence of intoxicating liquor

Damages - Assessment - Young female with severe facial injuries - Retained capacity for employment - Whether being exercised

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Claim allowed, damages awarded of $112,834.94

Representation:

Counsel:

Plaintiff:     Mr D R Clyne
First Defendant             :     Mr E J Myers
Second Defendant         :     Mr E J Myers

Solicitors:

Plaintiff:     Young & Young
First Defendant             :     Edward John Myers
Second Defendant         :     Edward John Myers

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

Graham v Baker (1961) 106 CLR 340
Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192
Medlin v State Government Insurance Commission (1995) 127 ALR 180
Pine Hauliers Pty Ltd v State Government Insurance Office (1986) 4 ANZ Insurance Cases 60-756

Case(s) also cited:

Bowen v Tutte (1990) A Tort Rep 81-043
Cassidy v State Government Insurance Office [1965] WAR 81
Faram v State Government Insurance Office, unreported; FCt SCt; Library No 960472; 29 August 1996
Keen v Mackay [1999] WASCA 193
Leigh v Quito Pty Ltd (2000) 23 SR (WA) 285
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Mulcahy v The Motor Vehicle Insurance Trust (1981) Australian and New Zealand Insurance Reporter 60-453
Thomas v O'Shea (1989) A Tort Rep 80-251

NISBET DCJ: On 14 March 1997 the plaintiff was severely injured in a motor vehicle accident whilst a passenger in her own vehicle which was then being driven by the first defendant. The accident occurred in Lukis Street, Balingup at sometime shortly before midnight. The accident occurred when the vehicle suddenly left the road and collided with a tree.
The plaintiff was born on 21 December 1978 and was a little over 18 years of age at the time of the accident and a little over 22 years of age at trial. At the time of the accident the plaintiff was employed by the first defendant as a nanny and the circumstances of her employment were such as to give rise to a controversy, the settlement of which is critical to the outcome of this case. This is because the second defendant pleads that the plaintiff was in breach of the warranty in the statutory policy of insurance provided by the Motor Vehicle (Third Party Insurance) Act 1943 which provides:
"The owner warrants that the vehicle will not be ‑
(a)…
(b)…
(c)driven by or in charge of himself or any other person who is unlicensed to drive or who is under the influence of intoxicating liquor.
It shall be a defence to any action in…

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 Finnamore v Beveridge

Details

AGLC: Finnamore v Beveridge [2001] WADC 110
Case: [2001] WADC 110
Decision Date

CaseChat Overview and Summary

The case of Finnamore v Beveridge was heard in the District Court of Western Australia. The plaintiff, Tamara Finnamore, sought damages from Wanda Louisa Beveridge, who was driving the car in which the plaintiff was a passenger when it crashed, causing severe injuries to the plaintiff. The Insurance Commission of Western Australia, the no-fault insurer of the plaintiff, also faced liability for the damages. The court had to determine whether the defendant was negligent in driving the plaintiff's car while unlicensed and under the influence of alcohol, and whether the plaintiff was aware of these circumstances. The court also had to assess the damages for the plaintiff's injuries.

The court found that the defendant was indeed negligent, but the plaintiff was not aware that the defendant was unlicensed or under the influence of alcohol. This was based on the credibility of the plaintiff's testimony compared to that of the defendant. The court assessed the damages for the plaintiff's injuries, taking into account both the physical and psychological impact of the accident, as well as the lost earning capacity due to the injuries. The court awarded the plaintiff damages in the amount of $112,834.94, including general damages for pain and suffering, past and future economic loss, special damages for medical expenses and lost earning capacity, and future medical expenses.

The court's decision was based on a careful consideration of the evidence presented and the relevant legal principles. The court found that the plaintiff's injuries were severe and had a significant impact on her physical and psychological well-being, as well as her ability to work. The court also found that the defendant's negligence was the cause of the plaintiff's injuries, and that the plaintiff was not aware of the defendant's unlicensed and intoxicated state at the time of the accident. The court's assessment of damages took into account both the objective and subjective aspects of the plaintiff's injuries, as well as the economic impact of the injuries on the plaintiff's earning capacity. The court's decision provides guidance on the assessment of damages in personal injury cases involving severe injuries and lost earning capacity.

Orders