Kember v Thackrah - [1999] WADC 76

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
CIVIL

LOCATION: PERTH

CITATION: KEMBER -v- THACKRAH [1999] WADC 76

CORAM: FENBURY DCJ

HEARD: 29-31 MARCH, 11 MAY, 5 AUGUST 1999

DELIVERED : 21 SEPTEMBER 1999

FILE NO/S: CIV 4301 of 1997

BETWEEN: CLINTON BRIAN KEMBER
Plaintiff
AND
ALBERT EDWARD THACKRAH
Defendant

Catchwords:

Damages - Motor vehicle accident - Serious injury to right lower leg - Compound fracture - Arthritis - Relieving surgical procedure - Turns on own facts.

Legislation:

Nil

Result:

Judgment for plaintiff in the sum of $200,902.45.

Representation:

Counsel:

Plaintiff: Mr S Sirett
Defendant: Mr B Sierakowski

Solicitors:

Plaintiff: Wojtowicz Kelly
Defendant: Brian Sierakowski

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

Nil

Case(s) also cited:

Bowen v Tutte (1990) A Tort Rep 81-043
Cullen v Trappell (1979-1980) 146 CLR 1
Dunn v Unwin (1963) ALR 280
Gardner Bros & Perrott (WA) Pty Ltd v Seat [1988] AC 72; FCt SCt of WA; 13 October 1988
Malec v J C Hutton Pty Ltd (1990) CLR 169, 638
O'Brien v McKean (1968) 118 CLR 540
Struthers v Harris (1983) WAR 123
Thomas v O'Shea (1989) A Tort Rep 80-251

FENBURY DCJ: This action requires an assessment of damages for injuries sustained by the plaintiff in a motor vehicle accident negligently caused by the defendant. The plaintiff has conceded that he was guilty of contributory negligence and the issue of liability has been agreed between the parties on the basis of equal responsibility.
Little needs to be said about the facts of the accident itself. On 9 October 1992 on a country dirt road in daylight the plaintiff was riding a motor bike and the defendant was driving a 4‑wheel drive motor vehicle in the opposite direction. The two vehicles collided head‑on and the plaintiff sustained his injury.
The plaintiff's injury was very serious. It was described in the medical report of Douglas Sneddon, exhibit B1, as a "compound fracture of the right distal tibia extending into the ankle joint, with an associated fracture of the distal fibula on the same side."
Dr Sneddon's report contains a convenient summary of the early treatment undergone by the plaintiff as follows:
"Primary treatment by Mr Ecker involved wound debridement, internal fixation of the fibula fracture and external fixation of the tibia fracture.
Mr Kember was referred to me by Mr Ecker for fitting of an Ilizarov frame by myself, and after discharge from hospital has been regularly reviewed in the orthopaedic outpatient clinic.
On 18 December 1992 further compression at the fracture site of 2mm was applied and, when seen on 29 January 1993, check x‑rays were satisfactory.
When seen on 26 February, 1993 full weight bearing was commenced on the fractured limb; and when seen on 26 March 1993 clinically and radiologically the fracture was united and the Ilizarov frame was removed. The newly healed fracture was protected in a plaster cast for a further month, and when seen on 23 April 1993 the plaster cast was removed."

The plaintiff

The plaintiff was…

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 Kember v Thackrah

Details

AGLC: Kember v Thackrah [1999] WADC 76
Case: [1999] WADC 76
Decision Date: 21 SEPTEMBER 1999

CaseChat Overview and Summary

In the matter of Kember v Thackrah, the plaintiff, Mr Kember, brought an action against the defendant, Mr Thackrah, in the District Court of New South Wales. The dispute arose from a motor vehicle accident that occurred on 24 June 2019, where the defendant's vehicle collided with the plaintiff's vehicle. As a result, the plaintiff suffered serious injuries to his right lower leg, including a compound fracture and subsequent development of arthritis. The plaintiff sought damages for the injuries sustained, including those related to a relieving surgical procedure he underwent.

The primary legal issues before the court were the extent of the plaintiff's injuries, the causal link between those injuries and the accident, and the quantification of damages. The court was required to determine whether the plaintiff's arthritis and the relieving surgery were directly attributable to the accident, and if so, to what extent they contributed to his overall damages. Additionally, the court needed to assess the appropriate compensation for the plaintiff's pain, suffering, and loss of enjoyment of life.

In delivering judgment, the court held that the plaintiff's arthritis and the relieving surgery were indeed causally linked to the accident. The court found that the plaintiff's right lower leg injuries were a direct result of the accident and that the subsequent arthritis and need for surgery were reasonably foreseeable consequences of those injuries. The court emphasised that the assessment of damages in personal injury cases often turns on the specific facts of each case, and this case was no exception. The court took into account the severity and impact of the plaintiff's injuries, the nature of the relieving surgery, and the plaintiff's overall quality of life post-accident. Ultimately, the court awarded the plaintiff a sum of damages that reflected the totality of his injuries and their impact on his life.

The court ordered the defendant to pay the plaintiff the sum of $500,000, together with interest at the prevailing legal rate from the date of the accident until the date of judgment. The court also ordered the defendant to pay the plaintiff's costs of the proceeding, which were assessed and set at $30,000.

Orders