Johnson v Marshall No. DCCIV-97-1614 Judgment No. D49 - [1999] SADC 49

JOHNSON v MARSHALL
[1999] SADC 49

Judge Taylor
Civil

At about 3.20pm on 23 December 1994, Keith Douglas Johnson, the plaintiff, was driving his motor vehicle in an easterly direction on Port Road, West Croydon in the State of South Australia and he was travelling towards the city. He was driving his own Nissan Vanette and he was working as a courier for Yellow Couriers. Whilst travelling on Port Road, he noticed some people playing football in the large median strip and they kicked the ball onto his carriageway which caused vehicles in front of him to brake suddenly and the plaintiff bought his vehicle to a halt without incident but the vehicle following him failed to stop immediately. He said he heard the scream of brakes from the vehicle behind him which was driven by Julie Marshall.
He said he heard the scream of brakes but that the car failed to brake in time and the front right hand corner of her vehicle collided with the rear right hand corner and on the side of the plaintiff’s vehicle. The plaintiff said that in the impact the rear of his seat broke and he stayed in his vehicle for a while and became furious and angry that in fact this accident had happened two days before Christmas and eventually he left his vehicle and went to the side of the road and vomited. After that, he had a conversation with the other driver and exchanged information and then he drove direct home without completing his deliveries. In fact another courier took the parcels from him and continued the deliveries which he would have had to make.
He described that at the scene he felt tingling in his arms. His neck was a little sore and also his lower back. He had previously had tinnitus in his ear but he noticed immediately at the time of the accident, the tinnitus became much more extensive and he also noted a graze on his hand.
I accept the evidence of the plaintiff that he experienced all those symptoms at the time of the accident. He describes at the time he arrived at home the symptoms were much more noticeable and he immediately arranged to see his general practitioner who had been Dr Wong but when he arrived he was not available and he saw another doctor at the Clinic, a Dr Orsillo.
The plaintiff suffered no objective injuries in the accident, that is there were no traumas to his head or any other part of his body apart from a graze on his hand.
It is important to look at the various characteristics of the plaintiff to find what all of his attributes were as he comes into this event.
He was born on 20 December 1944 and he went to school to third year at age 15 years when he left school for some disciplinary trouble and commenced employment. He had various employments over a number of years until he joined the…

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 Johnson v Marshall No. DCCIV-97-1614 Judgment No. D49

Details

AGLC: Johnson v Marshall No. DCCIV-97-1614 Judgment No. D49 [1999] SADC 49
Case: [1999] SADC 49
Decision Date: 1 April 1999

CaseChat Overview and Summary

Johnson v Marshall was a personal injury claim brought by the plaintiff, Keith Douglas Johnson, against the defendant, Julie Marshall. Johnson claimed that he suffered physical and psychological injuries in a motor vehicle accident that occurred on 23 December 1994, when Marshall's vehicle collided with the rear of Johnson's vehicle on Port Road, West Croydon in South Australia. Johnson sought damages for economic loss, non-economic loss, and special damages. The court was required to determine whether the accident caused the plaintiff's alleged injuries and, if so, what amount of damages should be awarded.

The court considered the evidence of the plaintiff, his wife, and various medical practitioners. It found that Johnson suffered some injuries in the accident, such as an aggravation of his pre-existing tinnitus and a muscular ligamentous sprain to his neck and lower back. However, the court also found that other injuries and conditions claimed by Johnson, such as a round window fistula, depression, and epilepsy, were not caused by the accident. The court relied on the medical evidence, which suggested that these conditions were either unrelated to the accident or had pre-existing causes. The court also noted that some of Johnson's symptoms, such as absences and memory loss, only emerged after he returned to work, which indicated that they were not directly caused by the accident.

The court awarded Johnson damages for his past economic loss, which it calculated as $9,000, plus interest of $4,000, for a total of $13,000. The court also awarded Johnson damages for his non-economic loss, which it calculated as $21,450, based on the severity and duration of his increased tinnitus and his anger over the accident. The court did not award any damages for future loss of earning capacity, as it found that Johnson's inability to continue working as a courier was due to his epilepsy and not the accident. The court also allowed Johnson some special damages, such as part of his psychologist's account, part of his Commonwealth Rehabilitation Service account, and part of his travelling expenses, for a total of $1,000.

In summary, the court found that Johnson was entitled to damages for some of the injuries he claimed to have suffered in the accident, but not for all of them. The court awarded him $35,450 in total damages.

Orders