Lumley v Sainsbury

[2017] ACTSC 40

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Lumley v Sainsbury

Citation:

[2017] ACTSC 40

Hearing Dates:

1 February 2017 – 3 February 2017

DecisionDate:

24 February 2017

Before:

Murrell CJ

Decision:

Judgment for the plaintiff in the sum of $184 591.90.

Catchwords:

DAMAGES – personal injury – motor vehicle accident –  injuries to spine – pre-existing degenerative condition in spine –  reasonableness of ongoing chiropractic treatment – causation in relation to economic loss and domestic assistance 

Cases Cited:

Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638

Mohammed v Onsite Formwork Pty Ltd [2015] ACTSC 416; (2015) 305 FLR 302

Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164

Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208

Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563

Rendell v Todd [2012] ACTSC 68

Wainwright v Lee [2013] ACTSC 191

Parties:

Janene Mary Ann Lumley (Plaintiff)

Benjamin Michael Sainsbury (First Defendant)

Insurance Australia Limited t/as NRMA Insurance (Second Defendant)

Representation:

Counsel

Mr D Crowe (Plaintiff)

Mr W Reynolds (First and Second Defendants)

Solicitors

Maliganis Edwards Johnson (Plaintiff)

Sparke Helmore (First and Second Defendants)

File Number:

SC 142 of 2016

MURRELL CJ:

1. The plaintiff claims damages for injuries sustained in a motor vehicle accident.  On 25 August 2011 the plaintiff was driving to work at the Canberra Hospital.  When her vehicle was stationary in Yamba Drive and the plaintiff was preparing to turn left into Hindmarsh Drive, a vehicle driven by Mr Sainsbury collided with the rear of her vehicle, pushing it well into the intersection. Insurance Australia Ltd trading as NRMA Insurance, Mr Sainsbury’s compulsory third-party insurer, has admitted liability.

1. Prior to the accident, the plaintiff suffered from degeneration in her spine which was symptomatic at all levels.  Periodically, she also experienced tinnitus and vertigo.  Since 2009, Mr Barritt, a chiropractor, had provided extensive treatment to the plaintiff.

1. The accident aggravated the plaintiff’s pre-existing back condition.  After the accident, she was treated by Mr Barritt, as well as other health care providers.  Mr Barritt remains the main treatment provider.

In relation to the assessment of damages, the principal issues are:

(a)The extent to which the accident aggravated the plaintiff’s pre-existing back problems and the course that her underlying condition would have taken if the accident had not occurred.

(b)The utility of treatment provided by Mr Barritt and whether it has been reasonable for the plaintiff to continue with that treatment.

(c)The extent to which any past and future economic loss can be attributed to the accident.

(d)The extent to which any requirement for domestic assistance can be attributed to the accident and the quantification of domestic assistance.

The plaintiff

1. At the time of the accident, the plaintiff was 54 years old.  She is now 59 years old.  She resides at Queanbeyan with her husband of 35 years.  For many years before the accident, the plaintiff worked two days a week as a permanent part-time registered nurse at the…