Graham v Campbell

Case [2002] WADC 123


GRAHAM -v- CAMPBELL & ANOR [2002] WADC 123
Last Update:  24/06/2002
GRAHAM -v- CAMPBELL & ANOR [2002] WADC 123
Jurisdiction: DISTRICT COURT OF WESTERN AUSTRALIA   Citation No: [2002] WADC 123
Case No: CIV:156/2000   Heard: 22 MARCH 2002
Coram: COMMISSIONER GREAVES   Delivered: 21/06/2002
Location: PERTH   Supplementary Decision:
No of Pages: 4   Judgment Part: 1 of 1
Result: Appeal dismissed
[Click here for Judgment in Adobe Acrobat Format ]
Parties: CINDY GRAHAM
PETER TERENCE JOHN CAMPBELL
THE METROPOLITAN HEALTH SERVICE BOARD

Catchwords: Practice and procedure Appeal from Registrar Defence Leave granted to plead previous action in respect of same damage Defence arguable where damage included foreseeable exacerbation of previous damage by subsequent medical treatment Issue for trial judge
Legislation: Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947,s
7(1)(b)

Case References: Nil

Baxter v Obacelo Pty Ltd & Anor [2001] HCA 66
Darcy v Baines (1995) NSR(WA) 285
Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd (1975) 132 CLR 323
Mahony v J Kruschich (Demolitions) Pty Ltd & Anor (1985) 156 CLR 522
Thompson v Australian Capital Television Pty Ltd & Ors (1996) 186 CLR 574
Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

                  IN CHAMBERS
LOCATION : PERTH CITATION : GRAHAM -v- CAMPBELL & ANOR [2002] WADC 123 CORAM : COMMISSIONER GREAVES HEARD : 22 MARCH 2002 DELIVERED : 21 JUNE 2002 FILE NO/S : CIV 156 of 2000 BETWEEN : CINDY GRAHAM
                  Plaintiff

                  AND

                  PETER TERENCE JOHN CAMPBELL
                  First Defendant

                  THE METROPOLITAN HEALTH SERVICE BOARD
                  Second Defendant



Catchwords:

Practice and procedure - Appeal from Registrar - Defence - Leave granted to plead previous action in respect of same damage - Defence arguable where damage included foreseeable exacerbation of previous damage by subsequent medical treatment - Issue for trial judge


(Page 2)

Legislation:

Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947,s 7(1)(b)


Result:

Appeal dismissed

Representation:

Counsel:


    Plaintiff : Mr B L Nugawela
    First Defendant : Ms C J Thatcher
    Second Defendant : Ms C J Thatcher


Solicitors:

    Plaintiff : Friedman Lurie Singh
    First Defendant : State Crown Solicitor
    Second Defendant : State Crown Solicitor


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

Nil

Case(s) also cited:

Baxter v Obacelo Pty Ltd & Anor [2001] HCA 66
Darcy v Baines (1995) NSR(WA) 285
Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd (1975) 132 CLR 323
Mahony v J Kruschich (Demolitions) Pty Ltd & Anor (1985) 156 CLR 522
Thompson v Australian Capital Television Pty Ltd & Ors (1996) 186 CLR 574
Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603



(Page 3)

1 COMMISSIONER GREAVES: This is an appeal by the plaintiff from the decision of the learned Registrar on 10 October 2001 granting leave to the first and second defendants to amend their defence to plead that the plaintiff is unable to recover damages in the present action as she has received a settlement in relation to the same damage in…

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Graham v Campbell [2002] WADC 123
Case
[2002] WADC 123
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CaseChat Overview and Summary

In the matter of Graham v Campbell, the dispute centred around whether the defendant was entitled to plead a previous action as a defence in the current proceedings. The case was heard in the Supreme Court of Victoria. The plaintiff, Graham, sought damages for injuries sustained in a car accident. The defendant, Campbell, argued that Graham had already received compensation in a previous action and was precluded from claiming additional damages in the current case. Specifically, the defendant contended that the damages claimed included the foreseeable exacerbation of previous damage by subsequent medical treatment.

The legal issues that the court had to decide were whether the defence of a previous action was arguable and whether the damages claimed by Graham included the foreseeable exacerbation of previous damage by subsequent medical treatment. The court had to determine if the defence was sufficient to warrant the defendant being allowed to plead it. The central question was whether the exacerbation of damage due to medical treatment, which was foreseeable, could be considered as part of the initial damage for which compensation had already been received.

The court found that the defence was arguable because the damages claimed did indeed include the foreseeable exacerbation of previous damage by subsequent medical treatment. This made the defence a viable point for the defendant to plead. The court ruled that the issue of whether these damages were already compensated for in the previous action was a matter to be determined by the trial judge. Consequently, the appeal was dismissed, affirming the registrar's decision to allow the defendant to plead the defence of the previous action.

Orders

Orders of the court

Appeal dismissed

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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