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Gaffney v Ward

Gaffney v Ward

Case [2014] NSWDC 20 28 March 2014

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District Court

New South Wales

Medium Neutral Citation: Gaffney v Ward [2014] NSWDC 20
Hearing dates: 10 & 20/03/2014
Decision date: 28 March 2014
Jurisdiction: Civil
Before: Levy SC DCJ
Decision:
1.Verdict and judgment for the plaintiff in the sum of $670,494.90;
2.The defendant is to pay the plaintiff's costs on the ordinary basis unless either party can s how an entitlement to some other order for costs;
3.The exhibits may be returned;
4.Liberty to apply on 7 days notice if further orders are required.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: TORTS - motor vehicle accident - nervous shock claim - plaintiff's children injured and placed in peril - breach of duty of care admitted; DAMAGES - assessment of damages for nervous shock - plaintiff unable to pursue her career as an opera singer
Legislation Cited: Civil Liability Act 2002, s 31
Evidence Act 1995, s 60
Motor Accidents Compensation Act 1999, s 126, s 131
Cases Cited: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Callaghan v Wm C Lynch Pty Ltd [1962] NSWR 871
Dasreef Pty Ltd v Hawchar [2011] HCA 21
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Foster v Tyne and Wear County Council [1986] 1 All ER 567
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705;
Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383
Paff v Speed [1961] HCA 14; (1961) 105 CLR 549
Penrith City Council v Parks [2004] NSWCA 201
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Wynn v NSW Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485
Category: Principal judgment
Parties: Meagan Gaffney (Plaintiff)
David Ward (Defendant)
Representation: On 10 March 2014
Mr G Hickey (Plaintiff)
Mr S Torrington (Defendant)
On 20 March 2014
Ms M Griffiths (Solicitor for the plaintiff)
Ms T Smart (Solicitor for the defendant)
Slater & Gordon (Plaintiff)
Sparke Helmore (Defendant)

File Number(s): 2012/336431
Publication restriction: None

Judgment

Table of Contents

Nature of case

[1] - [6]

Evidence…

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 Gaffney v Ward

Details

AGLC: Gaffney v Ward [2014] NSWDC 20
Case: [2014] NSWDC 20
Decision Date: 28 March 2014

CaseChat Overview and Summary

Gaffney v Ward involved a plaintiff who brought a claim for nervous shock after witnessing her children being injured and placed in peril in a motor vehicle accident. The defendant admitted liability for the accident and the breach of the duty of care. The case proceeded to determine the quantum of damages for the plaintiff's nervous shock, which prevented her from pursuing her career as an opera singer.

The primary legal issue was the assessment of damages for the plaintiff's nervous shock, particularly the impact on her career prospects and earning capacity. The court had to consider the extent of the plaintiff's injury, the nature of her profession, and the resultant loss of earnings and opportunities. Additionally, the court evaluated the evidence concerning the plaintiff's emotional distress and its effects on her personal and professional life.

The court carefully examined the evidence and found that the plaintiff's career as an opera singer was significantly impacted by her inability to continue performing due to the nervous shock. The court considered expert testimony regarding the plaintiff's potential earnings and opportunities in her profession, as well as the likelihood of her recovering her career. The court determined that the plaintiff was entitled to damages for the loss of her career and the associated emotional distress.

The court awarded the plaintiff $670,494.90 in damages for her nervous shock, reflecting the impact on her career and personal life. The court also ordered the defendant to pay the plaintiff's costs on the ordinary basis unless either party could demonstrate an entitlement to a different order for costs. The exhibits were to be returned, and the plaintiff was granted liberty to apply for further orders if necessary.

Orders

Orders of the court

1.Verdict and judgment for the plaintiff in the sum of $670,494.90;

2.The defendant is to pay the plaintiff's costs on the ordinary basis unless either party can s how an entitlement to some other order for costs;

3.The exhibits may be returned;

4.Liberty to apply on 7 days notice if further orders are required.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Gaffney v Ward [2014] NSWDC 20

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 17 of 17 shown

Allianz Australia Insurance Ltd v Kerr
[2012] NSWCA 13

…bility Act 2002, s 31 Evidence Act 1995, s 60 Motor Accidents Compensation Act 1999, s 126, s 131 Cases Cited: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Callaghan v Wm C Lynch Pty Ltd [1962] NSWR 871 Dasreef Pty Ltd v Hawchar [2011] HCA 21 Daw v Toyworld (NS…
Dasreef Pty Ltd v Hawchar
[2011] HCA 21 Para 1

…e Expert Witness Code: UCPR Sch 7, cl 5(1)(c): Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705; Dasreef Pty Ltd v Hawchar [2011] HCA 21.…
Penrith City Council v Parks
[2004] NSWCA 201

…995) 182 CLR 1 Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383 Paff v Speed [1961] HCA 14; (1961) 105 CLR 549 Penrith City Council v Parks [2004] NSWCA 201 Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536 Watts v Rake [1960] HCA 58; (1960) 1…
Makita (Australia) Pty Ltd v Sprowles
[2001] NSWCA 305 Para 1

…ely supported or explained by cogent reasons as is required by the Expert Witness Code: UCPR Sch 7, cl 5(1)(c): Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705; Dasreef Pty Ltd v Hawchar [2011] HCA 21.…
Daw v Toyworld (NSW) Pty Ltd
[2001] NSWCA 25 Para 1

…al evidence and referred to in the paragraphs that follow as evidence of the plaintiff's early post-injury difficulties: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995.…
State of New South Wales v Moss
[2000] NSWCA 133 Para 1

…bles not capable of precise assessment, does not mean that an attempt at assessment of the ensuing loss should not be undertaken: State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [71].…
Husher v Husher
[1999] HCA 47 Para 1

…laintiff must show that there has been a diminution of her earning capacity which was likely to cause her to suffer a financial loss: Husher v Husher [1999] HCA 47; (1999) 197 CLR 138, at [7] following Graham v Baker [1961] HCA 48; (1961) 106 CLR 340, at [10], p 347; Medlin v State Government Insurance Commissio…
Wynn v NSW Insurance Ministerial Corporation
[1995] HCA 53 Para 1

…usual or conventional vicissitudes of 15 per cent adequately pays due regard to those discounting considerations: Wynn v NSW Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485.…
Malec v JC Hutton Pty Ltd
[1990] HCA 20 Para 1

…ssibly being selected for other remunerative professional engagements in the ensuing years 2010, 2011, 2012, 2013 and 2014: Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638.…
Mount Isa Mines Ltd v Pusey
[1970] HCA 60 Para 1

…dant in this case, must take the plaintiff as she is found, including any reasonably foreseeable pre-injury vulnerabilities: Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, per Windeyer J, at [18], p 406.…
Purkess v Crittenden
[1965] HCA 34 Para 1

…erlying condition, and not due to an aggravation of asserted temporary duration: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164.…
Graham v Baker
[1961] HCA 48 Para 1

…capacity which was likely to cause her to suffer a financial loss: Husher v Husher [1999] HCA 47; (1999) 197 CLR 138, at [7] following Graham v Baker [1961] HCA 48; (1961) 106 CLR 340, at [10], p 347; Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1, at [2].…
Paff v Speed
[1961] HCA 14

…Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383 Paff v Speed [1961] HCA 14; (1961) 105 CLR 549 Penrith City Council v Parks [2004] NSWCA 201 Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 State of NSW v Moss [2000] N…
Watts v Rake
[1960] HCA 58 Para 1

…rienced by the plaintiff continue as a result of the underlying condition, and not due to an aggravation of asserted temporary duration: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164.…
Luxton v Vines
[1952] HCA 19 Para 1

…In surveying those matters it is of course important to recognise that unwarranted speculation should be avoided: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 per Dixon, Fullagar and Kitto JJ at 358, citing the decision of the High Court in Bradshaw v McEwans Pty Ltd , now reported at (1951) 217 ALR 1.…
Bradshaw v McEwans Pty Ltd
[1951] HCA 480

…s 31 Evidence Act 1995, s 60 Motor Accidents Compensation Act 1999, s 126, s 131 Cases Cited: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Callaghan v Wm C Lynch Pty Ltd [1962] NSWR 871 Dasreef Pty Ltd v Hawchar [2011] HCA 21 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 Foster…
Medlin v State Government Insurance Commission
[1995] HCA 5 Para 1

…(1999) 197 CLR 138, at [7] following Graham v Baker [1961] HCA 48; (1961) 106 CLR 340, at [10], p 347; Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1, at [2].…

Legislation cited in this decision · 3

Civil Liability Act 2002 (TAS)
31 2 mentions (from Para 1)
Evidence Act 1995 (Cth)
60 2 mentions (from Para 1)
Motor Accidents Compensation Act 1999 (NSW)
126 2 mentions (from Para 1)

Medium Neutral Citation:	Gaffney v Ward [2014] NSWDC 20
Hearing dates:	10 & 20/03/2014
Decision date:	28 March 2014
Jurisdiction:	Civil
Before:	Levy SC DCJ
Decision:	1.Verdict and judgment for the plaintiff in the sum of $670,494.90; 2.The defendant is to pay the plaintiff's costs on the ordinary basis unless either party can s how an entitlement to some other order for costs; 3.The exhibits may be returned; 4.Liberty to apply on 7 days notice if further orders are required. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	TORTS - motor vehicle accident - nervous shock claim - plaintiff's children injured and placed in peril - breach of duty of care admitted; DAMAGES - assessment of damages for nervous shock - plaintiff unable to pursue her career as an opera singer
Legislation Cited:	Civil Liability Act 2002, s 31 Evidence Act 1995, s 60 Motor Accidents Compensation Act 1999, s 126, s 131
Cases Cited:	Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Callaghan v Wm C Lynch Pty Ltd [1962] NSWR 871 Dasreef Pty Ltd v Hawchar [2011] HCA 21 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 Foster v Tyne and Wear County Council [1986] 1 All ER 567 Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705; Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383 Paff v Speed [1961] HCA 14; (1961) 105 CLR 549 Penrith City Council v Parks [2004] NSWCA 201 Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536 Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 Wynn v NSW Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485
Category:	Principal judgment
Parties:	Meagan Gaffney (Plaintiff) David Ward (Defendant)
Representation:	On 10 March 2014 Mr G Hickey (Plaintiff) Mr S Torrington (Defendant) On 20 March 2014 Ms M Griffiths (Solicitor for the plaintiff) Ms T Smart (Solicitor for the defendant) Slater & Gordon (Plaintiff) Sparke Helmore (Defendant)
File Number(s):	2012/336431
Publication restriction:	None