GIBBS -v- HAOMA MINING NL [No 3] [2015] WADC 57

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WADC 57
Case No:	CIV:1348/2007	Heard:	11 MARCH 2015
Coram:	SCHOOMBEE DCJ	Delivered:	15/05/15
Location:	PERTH
No of pages:	20	Judgment Part:	1 of 1
Result:	Application to review the sum previously allocated to general damages allowed Sum for general damages increased to $70,000
PDF Version

Parties:	BARBARA JEAN GIBBS HAOMA MINING NL INSURANCE COMMISSION OF WESTERN AUSTRALIA
Catchwords:	Tort Personal injury Application by plaintiff for judge to review calculation of general damages Amount allowed for general damages published in reasons, but no order made Power of District Court to alter calculation of general damages Whether s 23 of Motor Vehicle (Third Party Insurance) Act 1943 provides for retrospective operation of s 3G of the same Act Whether restrictions on general damages imposed by that Act are not applicable where defendant was the plaintiff's employer and its liability arose other than by reason of its negligent driving of the motor vehicle
Legislation:	Motor Vehicle (Third Party Insurance) Act 1943 (WA) s 3G, s 23
Case References:	CE Heath Underwriting & Insurance (Australia) Pty Ltd v Edwards Dunlop & Co Ltd (1993) 176 CLR 535 Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378 Commonwealth v Orr (1981) 58 FLR 219 Dickinson v Motor Vehicle Insurance Trust (1987) 74 ALR 197 Gibbs v Haoma Mining NL [2012] WADC 127 Maxwell v Murphy (1957) 96 CLR 261 Smith v NSW Bar Association (1992) 176 CLR 256 Wentworth v Woollahra Municipal Council [No 2] (1982) 149 CLR 672 Western Metals Zinc NL v Wesfarmers Transport Ltd [2003] WASCA 152

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : GIBBS -v- HAOMA MINING NL [No 3] [2015] WADC 57 CORAM : SCHOOMBEE DCJ HEARD : 11 MARCH 2015 DELIVERED : 15 MAY 2015 FILE NO/S : CIV 1348 of 2007 BETWEEN : BARBARA JEAN GIBBS

Plaintiff

AND

HAOMA MINING NL

Defendant

INSURANCE COMMISSION OF WESTERN AUSTRALIA

Third Party

Catchwords:

Tort - Personal injury - Application by plaintiff for judge to review calculation of general damages - Amount allowed for general damages published in reasons, but no order made - Power of District Court to alter calculation of general damages

Whether s 23 of Motor Vehicle (Third Party Insurance) Act 1943 provides for retrospective operation of s 3G of the same Act - Whether restrictions on general damages imposed by that Act are not applicable where defendant was the plaintiff's employer and its liability arose other than by reason of its negligent driving of the motor vehicle

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943 (WA) s 3G, s 23

Result:

Application to review the sum previously allocated to general damages allowed

Sum for general damages increased to $70,000

Representation:

Counsel:

Plaintiff : Ms R Sorgiovanni

Defendant : Mr J D Catlin

Third Party : Mr T Mason

Solicitors:

Plaintiff : Sorgiovanni Legal

Defendant : Mr Yeatman, in-house counsel for Haoma

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.

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Details

Case: [2015] WADC 57
Decision Date: 15 MAY 2015

CaseChat Overview and Summary

The case of Gibbs v Haoma Mining NL involved a dispute between the plaintiff, Gibbs, and the defendant, Haoma Mining NL, concerning personal injury sustained by Gibbs. The dispute was brought before the District Court of Western Australia. The primary issue before the court was the calculation and allocation of general damages awarded to Gibbs, who had previously been granted a certain sum for such damages. Gibbs sought a review of this calculation, arguing that it was inadequate.

The court had to decide whether the District Court had the power to alter the calculation of general damages, especially in light of statutory provisions. Specifically, the court needed to determine if section 23 of the Motor Vehicle (Third Party Insurance) Act 1943 allowed for the retrospective operation of section 3G of the same Act. Additionally, the court examined whether the restrictions on general damages imposed by section 3G were applicable in this case, given that Haoma Mining NL was not liable due to negligent driving of a motor vehicle but rather due to its role as Gibbs' employer.

The court found that the District Court did indeed have the power to review and alter the calculation of general damages. It concluded that section 23 of the Act did not preclude the retrospective application of section 3G, and that the restrictions on general damages were not applicable in this context. As a result, the court allowed Gibbs' application to review the previously allocated sum for general damages and increased it to $70,000.

Orders

Orders of the court

Application to review the sum previously allocated to general damages allowed

Sum for general damages increased to $70,000

Background

Background to the litigation

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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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