Hofer v Brown - [2009] NSWDC 32

CITATION: Hofer v Brown [2009] NSWDC 32
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 23, 24, 25 July and 5 August 2008

JUDGMENT DATE:
12 March 2009

JURISDICTION: District Court Civil

JUDGMENT OF: Levy SC DCJ

DECISION: 1. Verdict for the Plaintiff in the sum of $1,497,846;
2. The Plaintiff’s contributory negligence is assessed in the apportionment agreed at 25 percent;
3. Judgment for the Plaintiff in the apportioned sum of $1,123,384.50;
4. Defendant to pay the Plaintiff’s costs.

CATCHWORDS: DAMAGES – personal injury – Plaintiff sustained a closed head injury and fractured wrists in a motor vehicle collision – negligence admitted – agreed apportionment for contributory negligence – assessment of multiple heads of damage pursuant to Motor Accidents Compensation Act, 1999.

LEGISLATION CITED: Motor Accidents Compensation Act, 1999
Uniform Civil Procedure Rules, 2005, Schedule 7, Clause 5(c)

CASES CITED: Ghunaim v Bart [2004] NSWCA 28
Griffiths v Kerkemeyer [1997] HCA45; (1977) 139 CLR 161
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Morgan v Gibson [1997] NSWCA 212
Wynn v NSW Ministerial Corporation [1995] HCA53; (1995) 184 CLR 485

PARTIES: Andrew Hofer (Plaintiff)
Godfrey Herbert Brown (Defendant)

FILE NUMBER(S): 1627 of 2007

COUNSEL: Mr AJ Bartley SC with Mr E Romaniuk (Plaintiff)
Mr P Ryan (Defendant)

SOLICITORS: Keddies (Plaintiff)
Curwoods Lawyers (Defendants)

JUDGMENT

Nature of case

1. The Plaintiff claims damages for personal injury arising from a motor vehicle collision that occurred on 12 February 2005. On that date the Plaintiff was the rider of a motorcycle that was involved in an intersection collision when the Defendant’s four-wheel drive vehicle turned across the path of the Plaintiff’s motorcycle as it entered the intersection.

Liability

2. At the outset of the hearing the Defendant conceded there had been a relevant breach of the duty of care owed to the Plaintiff. At the same time the Plaintiff conceded the issue of contributory negligence. The parties deferred announcing the terms of their agreed apportionment on the issue of the extent of the Plaintiff’s contributory negligence until there had been an assessment of damages. After the quantum of my assessment was announced the agreement as to the Plaintiff’s contributory negligence was subsequently disclosed to be 25 percent.

Issues to be determined

3. The principal issues to be determined in the case concerned the impact of the combination of the Plaintiff’s head and orthopaedic injuries on his earning capacity. Subsidiary issues arose concerning the Plaintiff’s need for care, treatment and other services.

Assessed heads of damage

4. A total of twelve claimed heads of damage required assessment. These are listed below together with paragraph references:

Head of Damage

Paragraphs

(a) Non economic loss [113] - [117]

(b) Past loss of earnings [118] - [125]

(c) Loss of future earning capacity [126] - [137]

(d) Past superannuation losses [138]

(e) Future superannuation losses [139]

(f) Past domestic assistance and attendant care [140] - [152]

(g) Future domestic assistance and attendant…

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 Hofer v Brown

Details

AGLC: Hofer v Brown [2009] NSWDC 32
Case: [2009] NSWDC 32
Decision Date: 12 March 2009

CaseChat Overview and Summary

The case of Hofer v Brown was heard in an Australian court, where the Plaintiff, Hofer, sought damages for injuries sustained in a motor vehicle accident. Hofer alleged that Brown, the Defendant, was negligent in causing the accident, which resulted in a closed head injury and fractured wrists for Hofer. The parties agreed on the Defendant's negligence and the apportionment of contributory negligence at 25 percent. The court was required to determine the quantum of damages payable to Hofer, considering various heads of loss, in accordance with the Motor Accidents Compensation Act, 1999.

The central legal issue before the court was the assessment of damages for personal injury, including both economic and non-economic losses. The court had to evaluate the extent of the Plaintiff's injuries, their impact on his life, and the appropriate compensation for each head of damage. This involved calculating general damages for pain and suffering, loss of amenity, and special damages for medical expenses, loss of income, and other quantifiable losses. The court also needed to consider the statutory framework provided by the Motor Accidents Compensation Act, which governs the assessment and distribution of damages in motor vehicle accidents in Australia.

In delivering the judgment, the court meticulously reviewed the evidence and submissions from both parties, applying the statutory provisions and relevant case law to arrive at the appropriate quantum of damages. The court awarded the Plaintiff a total of $1,497,846, reflecting the agreed apportionment for contributory negligence at 25 percent. This resulted in a final judgment of $1,123,384.50 in favour of the Plaintiff. The court also ordered the Defendant to pay the Plaintiff's costs.

The final orders included a verdict for the Plaintiff in the sum of $1,497,846, with an apportionment for contributory negligence of 25 percent, leading to a net judgment of $1,123,384.50 in favour of the Plaintiff. Additionally, the court mandated that the Defendant pay the Plaintiff's costs associated with the proceedings.

Orders

Orders of the court

1. Verdict for the Plaintiff in the sum of $1,497,846; 2. The Plaintiff's contributory negligence is assessed in the apportionment agreed at 25 percent; 3. Judgment for the Plaintiff in the apportioned sum of $1,123,384.50; 4. Defendant to pay the Plaintiff's costs.

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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CITATION:	Hofer v Brown [2009] NSWDC 32 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	23, 24, 25 July and 5 August 2008
JUDGMENT DATE:	12 March 2009
JURISDICTION:	District Court Civil
JUDGMENT OF:	Levy SC DCJ
DECISION:	1. Verdict for the Plaintiff in the sum of $1,497,846; 2. The Plaintiff’s contributory negligence is assessed in the apportionment agreed at 25 percent; 3. Judgment for the Plaintiff in the apportioned sum of $1,123,384.50; 4. Defendant to pay the Plaintiff’s costs.
CATCHWORDS:	DAMAGES – personal injury – Plaintiff sustained a closed head injury and fractured wrists in a motor vehicle collision – negligence admitted – agreed apportionment for contributory negligence – assessment of multiple heads of damage pursuant to Motor Accidents Compensation Act, 1999.
LEGISLATION CITED:	Motor Accidents Compensation Act, 1999 Uniform Civil Procedure Rules, 2005, Schedule 7, Clause 5(c)
CASES CITED:	Ghunaim v Bart [2004] NSWCA 28 Griffiths v Kerkemeyer [1997] HCA45; (1977) 139 CLR 161 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Morgan v Gibson [1997] NSWCA 212 Wynn v NSW Ministerial Corporation [1995] HCA53; (1995) 184 CLR 485
PARTIES:	Andrew Hofer (Plaintiff) Godfrey Herbert Brown (Defendant)
FILE NUMBER(S):	1627 of 2007
COUNSEL:	Mr AJ Bartley SC with Mr E Romaniuk (Plaintiff) Mr P Ryan (Defendant)
SOLICITORS:	Keddies (Plaintiff) Curwoods Lawyers (Defendants)

Head of Damage	Paragraphs
(a) Non economic loss	[113] - [117]
(b) Past loss of earnings	[118] - [125]
(c) Loss of future earning capacity	[126] - [137]
(d) Past superannuation losses	[138]
(e) Future superannuation losses	[139]
(f) Past domestic assistance and attendant care	[140] - [152]
(g) Future domestic assistance and attendant…