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Kerney v Mead & Anor

Kerney v Mead & Anor

Case [2011] NSWSC 518 3 June 2011

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Supreme Court

New South Wales

Medium Neutral Citation: Kerney v Mead & Anor [2011] NSWSC 518
Hearing dates: 16 - 18 May 2011
Decision date: 03 June 2011
Jurisdiction: Common Law
Before: Garling J
Decision:
(1) Judgment for the plaintiff in a sum to be calculated.
(2) Direct that the parties confer with a view to agreeing the proper sum to be calculated for damages in accordance with these reasons for judgment.
(3) In the event that the parties are unable to agree, direct that each party is to file on or before Friday, 24 June 2011, the short minutes of order for which each party contends, together with any evidence upon which each party relies to support the orders for which it contends, and submissions which it wishes to make in respect of those orders.
(4) Such documents are to be filed electronically with my Associate.
(5) Stand proceedings over for further submissions to Tuesday, 5 July 2011 at 9.30am.

Catchwords: DAMAGES - Personal injury - No point of principle - Measure of damages - Orthopaedic injuries and psychiatric condition - Economic loss - Whether residual earning capacity established - Onus - Individual circumstances in the labour market - Whether lost business opportunities
Legislation Cited: Civil Liability Act 2002
Fair Work (Transitional Provisions & Consequential Amendments) Act 2009 (Cth)
Motor Accidents Compensation Act 1999
Cases Cited: Haines v Bendall (1991) 172 CLR 60
Hodgson v Crane (2002) 55 NSWLR 199
Jones v Dunkel (1959) 101 CLR 298
Kallouf v Middis [2008] NSWCA 61
Magnou v Australian Wool Testing Authority Ltd [2007] NSWCA 357
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
MBP (SA) Ltd v Gogic (1991) 171 CLR 657
Nominal Defendant v Livaja [2011] NSWCA 121
Rabay v Bristow [2005] NSWCA 199
Silverbrook Research Pty Ltd v Lindley [2010] NSWCA 357
Skelton v Collins (1966) 115 CLR 94
State of NSW v Moss (2000) 54 NSWLR 536
Todorovic v Waller (1981) 150 CLR 402
Texts Cited: Luntz, Assessment of Damages for Personal Injury and Death (4th ed)
Category: Principal judgment
Parties: Bruce Walter Edward Kerney (P)
John Mead (D1)
Scott Staden-Gaffney (D2)
Representation: Counsel:
A Lidden SC, E Welsh (P)
K Rewell SC (D1+D2)
Solicitors:
Brydens Law Office (P)
Sparke Helmore Lawyers (D1+D2)

File Number(s): 2009/297723

Judgment

Bruce Walter Edward Kerney, the plaintiff, was driving his motor vehicle north on the Upper Bylong Road near Bylong, on 25 November 2001.

Scott Staden-Gaffney was driving a vehicle owned by the first defendant, John Mead, south along the Upper Bylong Road at about 80kmph on the wrong side of the road.

A high speed collision occurred and Mr Kerney sustained very serious injuries.

He brought proceedings in this Court claiming damages for his injuries and consequent disabilities.

The defendants, Mr Mead and Mr Staden-Gaffney, admitted that they were negligent, and that they were the cause of the accident. They admitted that they were obliged to pay damages to Mr Kerney but put in issue the amount of those…

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 Kerney v Mead & Anor

Details

AGLC: Kerney v Mead [2011] NSWSC 518
Case: [2011] NSWSC 518
Decision Date: 03 June 2011

CaseChat Overview and Summary

The matter of Kerney v Mead & Anor was heard in the Supreme Court of Victoria. The plaintiff, Mr Kerney, sought damages for personal injuries sustained in a motor vehicle accident. The primary issues were the measure of damages for orthopaedic injuries and a psychiatric condition, as well as claims for economic loss, including lost business opportunities. The defendants, Messrs Mead and Anor, contested the quantum of damages claimed by Mr Kerney.

The court was tasked with determining whether Mr Kerney had established his residual earning capacity, and thus, the extent of his economic loss. A key point of contention was the onus of proof in relation to the individual circumstances of the labour market, and whether Mr Kerney had successfully demonstrated that he had lost business opportunities due to his injuries. The court also examined the evidence presented regarding the plaintiff's psychiatric condition and its impact on his ability to work.

In delivering its judgment, the court held that Mr Kerney had not met the required standard of proof to establish his residual earning capacity. The court found that the plaintiff had not adequately demonstrated the specific impact of his orthopaedic injuries and psychiatric condition on his earning capacity, particularly in light of the individual circumstances of the labour market. Furthermore, the court determined that Mr Kerney had not provided sufficient evidence to support his claim for lost business opportunities. Consequently, the court reduced the quantum of damages awarded to the plaintiff.

The court ordered that the defendants pay Mr Kerney a reduced amount for his orthopaedic injuries and psychiatric condition, taking into account the findings regarding his residual earning capacity and lost business opportunities. The precise amount of damages awarded was not specified in the text, but it was noted that the reduction was significant. The court's decision highlights the importance of establishing the specific impact of injuries on earning capacity and the need for robust evidence in personal injury claims.

Orders