Forge v Rewers

[2017] ACTSC 179

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Forge v Rewers

Citation:

[2017] ACTSC 179

Hearing Dates:

17, 18, 19 July 2017

DecisionDate:

21 July 2017

Before:

Mossop J

Decision:

See [81]

Catchwords:

CIVIL LAW – PERSONAL INJURY – motor vehicle accident – assessment of damages – whether disabilities caused by accident or pre-existing spondylitic condition – turns on own facts

Legislation Cited:

Civil Law (Wrongs) Act 2002 (ACT), ss 100, 100(1), 100(2), 100(2)(a), 100(2)(b)

Court Procedure Rules 2006 (ACT)

Road Transport (Third Party Insurance) Act 2008 (ACT), ss 136, 147

Cases Cited:

Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320

Makita v Sprowles [2001] NSWCA 305; 52 NSWLR 705

Griffiths v Kerkemeyer (1977) 139 CLR 161

Parties:

Craig Forge (Plaintiff)

Edward Marion Rewers (First Defendant)

Insurance Australia Limited trading as NRMA Insurance (ACN 000016722) (Second Defendant)

Representation:

Counsel

A Muller (Plaintiff)

J Pappas (Defendants)

Solicitors

Maliganis Edwards Johnson (Plaintiff)

Sparke Helmore (Defendants)

File Number:

SC 271 of 2016

MOSSOP J:

Introduction

1. This is an assessment of damages arising from a rear end motor vehicle collision.  The collision occurred on the evening of 4 August 2012.  The plaintiff was in a vehicle on the Barton Highway at traffic lights near the Gungahlin Drive flyover when the defendant’s vehicle drove up at speed from behind.  Observing the vehicle approaching from behind, the plaintiff attempted to accelerate away from the oncoming vehicle but could not avoid the collision.  The defendants have admitted breach of duty.  The task of the Court is to assess causally related damages.

Relevant chronology

1. The plaintiff was born in 1965.  He completed Year 10 the Wangaratta Technical College in Victoria.  He commenced work in 1981 for Canny’s Carrying.  This involved working in a furniture van moving furniture.  He subsequently obtained a licence to drive a semitrailer and did interstate driving work, loading during the day and driving during the night.  He spent the whole week away. 

1. He worked for various transport companies until moving to Canberra in the late 1980s or early 1990s to drive for Iannelli Transport moving fresh produce.  In the mid 1990s he worked for Abletts Transport moving general freight.  The delivery of this freight was less time critical than the fresh produce moved in his previous job.  In the late 1990s he was employed by All States Towing as a driver as well as doing office work.  All States Towing had the contracts with the NRMA and the police for the towing of vehicles.  This job was less physical than working as a truck driver.

1. In 2002 or 2003 he commenced working as a self-employed truck owner-driver.  He traded under the name CL Forge Transport.  He was generally driving between Melbourne and Sydney, doing five round trips per fortnight.  He would spend 16 to 20 hours on the road at a time.

1. Medical records show that he saw his general practitioner, Dr Ho, in August 2007 complaining of pain in his right elbow and neck.  In October 2008 he had…