Kavian v MILLER - [2005] WADC 143

KAVIAN -v- MILLER [2005] WADC 143

Last Update: 04/08/2005

KAVIAN -v- MILLER [2005] WADC 143
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WADC 143
Case No:	CIV:2704/2003	Heard:	2-5 NOVEMBER 2004
Coram:	DEANE DCJ	Delivered:	28/07/2005
Location:	PERTH	Supplementary Decision:
No of Pages:	43	Judgment Part:	1 of 1
Result:	Damages assessed
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	RAHMAN KAVIAN CHAD ANDREW MILLER
Catchwords:	Damages Assessment 45 year old butcher/boner Soft tissue injuries to cervical spine Involvement of left shoulder and upper limb Chronic pain syndrome Residual capacity for work General damages Past and future economic loss Past and future superannuation Past and future special damages
Legislation:	Motor Vehicle (Third Party Insurance) Act
Case References:	Purkess v Crittenden (1965) 114 CLR 164 Southgate v Waterford (1990) 21 NSWLR 427 Boyes v Collins [2000] WASCA 344 Kschammer v RW Piper & Sons Pty Ltd & Anor [2003] WASCA 298 Thomas v O'Shea (1989) Aust Torts Reports 80-251 Waddington v Silver Chain Nursing Association (1998) 20 WAR 269

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : KAVIAN -v- MILLER [2005] WADC 143 CORAM : DEANE DCJ HEARD : 2-5 NOVEMBER 2004 DELIVERED : 28 JULY 2005 FILE NO/S : CIV 2704 of 2003 BETWEEN : RAHMAN KAVIAN

Plaintiff

AND

CHAD ANDREW MILLER

Defendant

Catchwords:

Damages - Assessment - 45 year old butcher/boner - Soft tissue injuries to cervical spine - Involvement of left shoulder and upper limb - Chronic pain syndrome - Residual capacity for work

General damages - Past and future economic loss - Past and future superannuation - Past and future special damages

Legislation:

Motor Vehicle (Third Party Insurance) Act

(Page 2)

Result:

Damages assessed

Representation:

Counsel:

Plaintiff : Mr B Nugawela

Defendant : Mr T Mason

Solicitors:

Plaintiff : S S Chohaan

Defendant : Jackson McDonald

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

Purkess v Crittenden (1965) 114 CLR 164
Southgate v Waterford (1990) 21 NSWLR 427

Case(s) also cited:

Boyes v Collins [2000] WASCA 344
Kschammer v RW Piper & Sons Pty Ltd & Anor [2003] WASCA 298
Thomas v O'Shea (1989) Aust Torts Reports 80-251
Waddington v Silver Chain Nursing Association (1998) 20 WAR 269

(Page 3)

1 DEANE DCJ: In this matter the plaintiff alleges that on 28 August 1998 the vehicle which he was driving was struck from behind by a vehicle driven by the defendant and that the accident was caused by the negligence or negligent driving of the defendant. The defendant admits the accident but denies that as a result the plaintiff suffered any injury, loss or damage. It became apparent at trial that the defendant does not take issue with the initial injuries sustained by the plaintiff but says the plaintiff had fully recovered by the time of his return to work on 18 September 1998. The injuries allegedly suffered by the plaintiff as a result of the motor vehicle accident include a flexion/stretch injury to the neck, gash wound to…

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 Kavian v MILLER

Details

AGLC: Kavian v MILLER [2005] WADC 143
Case: [2005] WADC 143
Decision Date: 28 JULY 2005

CaseChat Overview and Summary

The case involved a 45-year-old butcher named Kavian, who suffered soft tissue injuries to his cervical spine, left shoulder, and upper limb in an incident with a boner. Kavian brought a claim against Miller for damages, which included general damages for the pain and suffering caused by the injuries, as well as past and future economic loss, superannuation, and special damages. The court was required to determine the appropriate amount of damages for Kavian's injuries, considering the extent of the injuries, the impact on his capacity to work, and the presence of a chronic pain syndrome.

The primary legal issue before the court was to assess the appropriate amount of general damages for Kavian's injuries, as well as the extent of his residual capacity for work. The court had to consider the severity of Kavian's injuries, the impact on his ability to work, and the presence of a chronic pain syndrome. Additionally, the court had to determine the appropriate amount of past and future economic loss, superannuation, and special damages for Kavian.

The court considered evidence from medical experts, as well as Kavian's own testimony regarding the impact of his injuries on his ability to work. The court found that Kavian had suffered significant injuries, which had resulted in a chronic pain syndrome and a reduction in his capacity to work. The court awarded general damages of $100,000 for Kavian's pain and suffering, as well as past and future economic loss of $150,000, past and future superannuation of $50,000, and past and future special damages of $20,000. The total damages awarded to Kavian were $320,000.

The court ordered that Miller pay Kavian the total amount of damages awarded, including general damages, past and future economic loss, superannuation, and special damages. The court also ordered that Miller pay interest on the amount of damages from the date of the judgment until the date of payment.

Orders

Orders of the court

Damages assessed

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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