GAROFFOLO v Pash - [2001] WADC 296

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: GAROFFOLO -v- PASH [2001] WADC 296

CORAM: GROVES DCJ

HEARD: 29 AND 30 JANUARY 2001

DELIVERED : 20 DECEMBER 2001

FILE NO/S: CIV 4248 of 1999

BETWEEN: DAVID ORLANDO GAROFFOLO
Plaintiff
AND
JANELLA PASH
Defendant

Catchwords:

Damages - Assessment - Personal injuries - Rear end collision - Soft tissue injury to cervical and dorsal (mid thoracic) spine - 24 year old cabinetmaker

Legislation:

Motor Vehicle (Third Party) Insurance Act 1943, s 3C

Result:

Damages assessed at $76,574.30

Representation:

Counsel:

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

Solicitors:

Plaintiff: Simon Walters
Defendant: John G Staude

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

Andjelic v Marsland (1996) 70 ALJR 435
Southgate v Waterford (1990) 21 NSWLR 427
Wylde v Aristondo 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997

Case(s) also cited:

Nil

GROVES DCJ: The plaintiff claims damages from the defendant for injuries suffered in a motor vehicle accident on 20 May 1998. Liability is admitted and the matter proceeded by way of an assessment of damages.

The motor vehicle accident

On 20 May 1998 the plaintiff was driving his motor vehicle on Joondalup Drive at Joondalup. His vehicle was stationary at traffic lights at an intersection when he saw through his rear-vision mirror a car quickly approaching him from behind. He turned around to his left and observed the vehicle pass about 10 stationary cars in the lane next to him and collide into the rear of his vehicle. He alighted from his vehicle and observed minor damage to the rear of his vehicle, his towbar was bent and hooked into the front of the defendant's vehicle. When the two vehicles were disentangled the plaintiff was able to drive away. He was not aware as to the cost of repairs to his vehicle.
The plaintiff described being shaken by the accident but he did not feel any pain at the time. Approximately four to five hours later he felt some stiffness in the lower back, which crept up into the area of his neck. Over the following week his condition got progressively worse and on 3 June 1998 he consulted Dr Eva Cronstedt at the Belridge Medical Group complaining of back and neck ache with the pain increasing in the two days prior to his attendance. Dr Cronstedt prescribed analgesia and referred the plaintiff for physiotherapy. The symptoms persisted with pain in the neck and upper back worsening and the analgesia providing only temporary relief. Dr Cronstedt referred the plaintiff to Pain Management Specialist, Dr Geoffrey Gee, who saw him on 1 July 1998. He recommended continuing physiotherapy treatment.

The plaintiff's history

The plaintiff was born on 9 February 1976. At the date of the accident he was 22 years. He completed his secondary education at Prindeville Catholic College at the end of 1991 and left school at age 15 years. He then undertook a one year pre-apprentice course at a TAFE…

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 GAROFFOLO v Pash

Details

AGLC: GAROFFOLO v Pash [2001] WADC 296
Case: [2001] WADC 296
Decision Date

CaseChat Overview and Summary

David Orlando Garoffolo brought an action against Janella Pash for damages arising from injuries sustained in a motor vehicle accident on 20 May 1998. The parties admitted liability and the Court was required to determine the amount of damages payable to the plaintiff. The issues included the assessment of general damages for pain and suffering, past and future economic loss, loss of superannuation benefits, future medical expenses, and special damages. The Court found that the plaintiff sustained soft tissue injuries which were mild to moderate in severity and that his recovery was slow but steady. The Court awarded general damages of $23,300, past economic loss of $36,091.24 with interest of $2,887.30, future economic loss of $10,000, loss of superannuation benefits of $3,657.76, future medical expenses of $600, and special damages of $38.00, for a total of $76,574.30.

Orders