Gesmundo v Bates - [2011] WADC 35

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: GESMUNDO -v- BATES [2011] WADC 35

CORAM: STAVRIANOU DCJ

HEARD: 24 FEBRUARY 2011

DELIVERED : 9 MARCH 2011

FILE NO/S: CIV 1320 of 2010

BETWEEN: ROBERT GESMUNDO
Plaintiff
AND
HAYLEY MICHELLE BATES
Defendant

Catchwords:

Damages - Assessment - Personal injuries - Soft tissue injury - 72-year-old - Extent of loss of earning capacity - Turns on own facts

Legislation:

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

Result:

Judgment for the plaintiff in the sum of $4,488

Representation:

Counsel:

Plaintiff: Mr E J Myers
Defendant: Mr C C Rimmer

Solicitors:

Plaintiff: Simon Walters
Defendant: Jackson McDonald

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

Den Hoedt & Anor v Barwick [2006] WASCA 196
Graham v Baker (1961) 106 CLR 340
Husher v Husher (1999) 197 CLR 138
Purkess v Crittenden (1965) 114 CLR 164
Southgate v Waterford (1990) 21 NSWLR 427
Watts v Rake (1960) 108 CLR 158

STAVRIANOU DCJ:

Introduction

In this action the plaintiff, Robert Gesmundo, claims damages for injuries suffered by him in a motor vehicle accident on 17 April 2009.
The defendant admits negligence, denies any injury or entitlement to damages, and pleads that any loss, injury or damage is caused by or contributed to by a motor vehicle accident on 25 April 2005 and/or Mr Gesmundo's pre‑existing cervical and/or lumbar degeneration.

Circumstances of the accident

On the day of the accident Mr Gesmundo was the driver of a motor vehicle which was stationary in Thomas Street, West Perth when it was struck from the rear by another motor vehicle driven by the defendant. Mr Gesmundo's vehicle sustained scratches and minor damage.
Mr Gesmundo's evidence was that as soon as the collision occurred he felt a burning pain at the nape of his neck. He also had pain in his lower back. He did not immediately seek medical advice because he felt that 'it may sort of fade out on its own'.
Twelve days after the accident, Mr Gesmundo attended upon Dr Gary Spurge, a general practitioner who prescribed painkillers.

Mr Gesmundo's personal circumstances and evidence

Mr Gesmundo is aged 72 years, having been born on 1 June 1938. At the date of accident he operated a recruitment agency and worked as a marriage and funeral celebrant.
Mr Gesmundo's evidence was that as a result of the accident he experiences neck pain, headaches, low back pain and pain in the right leg. The headaches are constant. The low back pain is constant and increases with exercise. Any sharp movements, turns, lifting or being seated for long periods results in increased pain.
It was Mr Gesmundo's evidence that in the three months after the accident he continued with his usual work.
During 2009 Mr Gesmundo saw Dr Spurge on four occasions for accident related injuries. In 2010 he saw him on 26 February and 22 July.
Mr Gesmundo's evidence was that the effects of the accident have impacted upon each of the three vocations he currently…

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 Gesmundo v Bates

Details

AGLC: Gesmundo v Bates [2011] WADC 35
Case: [2011] WADC 35
Decision Date: 9 MARCH 2011

CaseChat Overview and Summary

The case of Gesmundo v Bates arose before the Supreme Court of Victoria. The plaintiff, Gesmundo, sought compensation for personal injuries sustained in an accident involving the defendant, Bates. The primary issue in dispute was the appropriate assessment of damages, particularly concerning the extent of the plaintiff's loss of earning capacity resulting from a soft tissue injury. The plaintiff, who was 72 years old at the time of the accident, argued that the injury had significantly impacted his ability to work and earn an income, while the defendant contested the extent of this impact.

The court was tasked with determining the extent of Gesmundo's loss of earning capacity. This involved evaluating the nature and severity of the soft tissue injury, the plaintiff's pre-accident employment history, and his age at the time of the injury. The court had to consider whether the injury substantially diminished the plaintiff's ability to earn in the future, taking into account his age and the realistic prospects of employment. The court also needed to balance the plaintiff's arguments with the defendant's contentions regarding the limited impact of the injury on earning capacity.

In delivering the judgment, the court carefully examined the evidence presented by both parties. The court found that while the injury did result in a loss of earning capacity, the extent of this loss was influenced by the plaintiff's age and the realistic employment opportunities available to him. The court concluded that the injury did not severely limit the plaintiff's ability to work, and thus, the loss of earning capacity was not as significant as claimed. The court assessed the damages based on the specific facts of the case, acknowledging the impact of the injury but also considering the broader context of the plaintiff's age and employment prospects.

The court ordered that the defendant pay the plaintiff a sum of money reflecting the assessed loss of earning capacity. The amount awarded was determined to be commensurate with the injury's impact, considering the plaintiff's age and employment prospects. The decision underscored the necessity of a nuanced approach in assessing damages for personal injuries, particularly in cases involving older individuals.

Orders