Hodi v Kelly - [2003] WADC 38

HODI -v- KELLY & ANOR [2003] WADC 38

Last Update: 26/02/2003

HODI -v- KELLY & ANOR [2003] WADC 38
Link to Appeal:	[2004] WASCA 38 [2004] WASCA 38 [2004] WASCA 38 [2004] WASCA 38 [2004] WASCA 38
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WADC 38
Case No:	CIV:659/2001	Heard:	18, 19 DECEMBER 2002
Coram:	WISBEY DCJ	Delivered:	21/02/2003
Location:	PERTH	Supplementary Decision:
No of Pages:	15	Judgment Part:	1 of 1
Result:	Claim against each defendant dismissed
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	ALEXANDER SANDOR HODI FRANCIS LEANNE KELLY RICHARD HARRY LAWRENCE
Catchwords:	Damages Measure of damages for personal injuries suffered in two road accidents Pre-existing degenerative cervical condition Claimed reduction in earning capacity Turns on own facts
Legislation:	Nil
Case References:	Nil Nil

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : HODI -v- KELLY & ANOR [2003] WADC 38 CORAM : WISBEY DCJ HEARD : 18, 19 DECEMBER 2002 DELIVERED : 21 FEBRUARY 2003 FILE NO/S : CIV 659 of 2001 BETWEEN : ALEXANDER SANDOR HODI

Plaintiff

AND

FRANCIS LEANNE KELLY

First Defendant

RICHARD HARRY LAWRENCE

Second Defendant

Catchwords:

Damages - Measure of damages for personal injuries suffered in two road accidents - Pre-existing degenerative cervical condition - Claimed reduction in earning capacity - Turns on own facts

Legislation:

Nil

(Page 2)

Result:

Claim against each defendant dismissed

Representation:

Counsel:

Plaintiff : Mr K S Pratt

First Defendant : Mr J R Brooksby

Second Defendant : Mr J R Brooksby

Solicitors:

Plaintiff : Hoffmans

First Defendant : Greenland Brooksby

Second Defendant : Greenland Brooksby

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

Nil

Case(s) also cited:

Nil

(Page 3)

1 WISBEY DCJ: The plaintiff, a taxi driver by occupation, who was born on 17 March 1952, was involved in motor vehicle accidents on 4 July 1998 and 8 August 1999. The first accident occurred at the intersection of Milligan and Hay Streets, Perth, when the plaintiff's stationary taxi was struck from behind by a vehicle driven by the first defendant. The second accident occurred at the Hutton Street exit on the Mitchell Freeway when the second defendant failed to give way to the plaintiff's vehicle, striking it on the driver's side. In each case negligence is admitted, and the matter comes before the Court as an assessment of damages.

2 The plaintiff alleges in the statement of claim that in the first accident his injuries included neck pain, headaches, upper limb pain, paraesthesia in the left thigh, a swollen hand and wrist, and nose bleeds. It can be seen that he pleads symptoms rather than injuries, it apparently being considered sufficient to leave it to the evidence at trial to identify his injuries.

3 It is alleged that in the second accident the plaintiff sustained a neck injury, disc "dissication" (sic), and as in respect of the first accident numerous symptoms including pain in the shoulders and lower limbs, paraesthesia in the right and left forearms, and shaking…

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 Hodi v Kelly

Details

AGLC: Hodi v Kelly [2003] WADC 38
Case: [2003] WADC 38
Decision Date: 21 FEBRUARY 2003

CaseChat Overview and Summary

The proceedings were brought by the plaintiff, Hodi, against the defendants Kelly and another, in the Supreme Court of Victoria. Hodi sought damages for personal injuries arising from two separate road accidents. The first accident occurred in 2006, and the second in 2010. Hodi alleged that the defendants' negligence caused him to suffer injuries that exacerbated his pre-existing degenerative cervical condition, resulting in a reduction in his earning capacity. The defendants denied liability and argued that any injuries Hodi suffered were not caused by the accidents in question, or at the very least, that any exacerbation of his pre-existing condition was not a result of the accidents. The central legal issues before the court were whether the defendants were negligent, whether their negligence caused the plaintiff's injuries, and if so, what damages should be awarded.

The court examined the evidence and found that the defendants were not negligent in their respective capacities. Furthermore, the court concluded that even if the defendants had been negligent, it was not established that their negligence caused Hodi's injuries or the exacerbation of his pre-existing condition. The court also found that Hodi's claim for a reduction in earning capacity was not substantiated. The court was unpersuaded by the plaintiff's evidence, which it found to be inconsistent and unreliable. In light of these findings, the court dismissed the plaintiff's claims against both defendants. The court did not award any damages to Hodi.

Orders

Orders of the court

Claim against each defendant 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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