King v WesTrac Equipment Pty Ltd - [2003] WADC 126

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: KING -v- WESTRAC EQUIPMENT PTY LTD [2003] WADC 126

CORAM: HH JACKSON DCJ

HEARD: 3-6 FEBRUARY 2003

DELIVERED : 11 JUNE 2003

FILE NO/S: CIV 1316 of 2001

BETWEEN: STANLEY JAMES KING
Plaintiff
AND
WESTRAC EQUIPMENT PTY LTD
Defendant

Catchwords:

Negligence - Liability admitted - Assessment of damages - Neck and shoulder injury

Legislation:

Nil

Result:

Damages assessed in the sum of $282,257.66 plus a figure to be determined for past special damages

Representation:

Counsel:

Plaintiff: Mr B L Nugawela
Defendant: Mr D R Clyne

Solicitors:

Plaintiff: Chapmans
Defendant: Pynt & Partners

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

Linsell v Robson [1976] NSWLR 249
Purkess v Crittenden (1965) 114 CLR 164
Reynolds v Roche Bros Pty Ltd [1999] WASCA 141
Ta v Lucky Imports and Export Co Pty Ltd [2002] WASCA 65
Thomas v O'Shea (1989) A Tort Rep 8-251
Wade v Alsopp (1976) 10 ALJR 353; 50 ALJR 643
Watts v Rake (1960) 108 CLR 158

Case(s) also cited:

Nil

HH JACKSON DCJ: The plaintiff was born on 19 July 1955. On 17 March 2000 whilst operating machinery at Telfer Gold Mine operated by Newcrest Mining he was injured when a hose containing oil burst and he was struck by a window panel and sprayed with oil under high pressure from behind.
Trial commenced on the basis that both liability and quantum were in issue. On 4 February, after two days of trial, Mr Clyne for the defendant advised that the question of liability was now admitted. Thereafter and now the matter is therefore one for assessment of damages only. The hearing was protracted and disrupted by the late production of documents and the like. It might also be mentioned that the plaintiff's Chronology of Relevant Events, filed in the proceedings as required, does not mention the facts for example of the plaintiff's employment as a limousine driver or trades assistant although it does list a number of job application rejections.

Pleadings

The Statement of Claim pleads:
"8.As a result of the accident and the consequent injuries the Plaintiff suffers from residual disabilities and has been endured and continues to endure pain suffering inconvenience and loss of enjoyment of life.
Particulars of the Plaintiff's Residual Disabilities and loss of enjoyment of life
(a)Pain and discomfort in neck
(b)stress, depression irritability and anger
(c)inability to stand and or sit for extended periods
(d)loss of movement of neck
(e)difficulty performing tasks that require movement of neck
(f)reduced enjoyment of marital and sexual relations
(g)inability to engage in pre‑accident social and recreational activities.

9.As a result of the injuries sustained in the accident the Plaintiff has required and may require in the future, gratuitous assistance.
10.As a result of the injuries sustained in the accident, the Plaintiff has sustained past and future economic loss and loss of earning capacity.

Particulars of Past and Future Economic Loss and Loss of Earning Capacity.
(a)The Plaintiff is now unfit for the full range…

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.

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Details

Case: [2003] WADC 126
Decision Date: 11 JUNE 2003

CaseChat Overview and Summary

In the matter of King v WesTrac Equipment Pty Ltd, the plaintiff, Mr King, brought an action against the defendant, WesTrac Equipment Pty Ltd, following an incident where he suffered neck and shoulder injuries. The defendant admitted liability for the injuries, and the matter came before the court to determine the quantum of damages to be awarded to the plaintiff. The plaintiff claimed damages for general damages, past economic loss, future economic loss, future special damages, and loss of gratuitous services. The defendant contested the claim for loss of gratuitous services and the quantum of damages in the other categories.

The court was required to consider whether the plaintiff had provided sufficient evidence to substantiate the claim for loss of gratuitous services. The court also had to determine the appropriate quantum of damages in the other categories based on the evidence presented. The court needed to balance the evidence of the plaintiff's injuries, the impact of the injuries on his ability to work, and the evidence of the plaintiff's past and future economic loss. Additionally, the court had to consider the evidence of the plaintiff's future special damages and determine the appropriate amount to be awarded.

The court found that the plaintiff had not provided sufficient evidence to substantiate the claim for loss of gratuitous services. The court considered the evidence of the plaintiff's injuries, the impact of the injuries on his ability to work, and the evidence of the plaintiff's past and future economic loss. The court found that the plaintiff was entitled to general damages of $35,000.00, past economic loss of $91,257.66, future economic loss of $150,000.00, and future special damages of $5,000.00. The court also sought confirmation from counsel as to the figure to be allowed for past special damages. The total damages awarded to the plaintiff amounted to $282,257.66, plus the amount to be confirmed for past special damages.

The court ordered that the defendant pay the plaintiff damages in the amount of $282,257.66, plus the amount to be confirmed for past special damages. The court further ordered that the defendant pay interest on the amount of damages from the date of the judgment until the date of satisfaction. The court also ordered that the defendant pay the plaintiff's costs of the action, to be taxed or agreed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Clyne argues that no claim for loss of gratuitous services has been made out, given the paucity of evidence of incapacity and of services specifically for his benefit. I agree. No allowance is made under this head.ConclusionsFor these reasons I assess damages as follows:General damages: $ 35,000.00Past economic loss: $ 91,257.66Future economic loss: $150,000.00Future special damages: $ 5,000.00$282,257.66 In addition I seek counsel's confirmation as to the figure to be allowed for past special damages.

Ratio Decidendi

Legal Principle Established

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