Macey v Giblett - [2014] WADC 13

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MACEY -v- GIBLETT [2014] WADC 13

CORAM: DEANE DCJ

HEARD: 26-30 AUGUST 2013

DELIVERED : 31 JANUARY 2014

FILE NO/S: CIV 3001 of 2011

BETWEEN: CATHERINE MICHELLE MACEY
Plaintiff
AND
KEVIN LOLYA GIBLETT
Defendant

Catchwords:

Personal injury claim arising out of motor vehicle accident - Defendant admits liability - Assessment of damage only - Plaintiff's capacity for work - Duration of plaintiff's incapacity for work - Whether plaintiff fit to carry out duties consistent with her preaccident occupation - Whether plaintiff failed to mitigate her damages

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943 s 3C, s 3D
Civil Liability Act 2002 s 10A

Result:

Damages assessed and awarded

Representation:

Counsel:

Plaintiff: Mr D R Clyne
Defendant: Ms B A Mangan

Solicitors:

Plaintiff: Simon Walters
Defendant: K N Allan

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

Fox v Wood (1981) 148 CLR 438
Jones v Putley [2004] WADC 49
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Montemaggiori v Wilson (2011) 58 MVR 497
Plenty v Argus [1975] WAR 155

DEANE DCJ: This trial concerns an issue of assessment of damages only, as liability has been admitted on behalf of the defendant. The matter arises out of a motor vehicle accident which occurred on 27 October 2010 between a bus driven by the defendant and a motor vehicle driven by the plaintiff.

The pleadings

As a result of the accident which was caused by the defendant's negligent manner of driving it is pleaded that the plaintiff sustained an abrasion to her right elbow and a soft tissue injury to the cervical spine, thoracic spine, lumbar spine and both shoulders. It is pleaded that these injuries produced:
(a)pain, stiffness and tenderness of the right elbow, neck, mid‑back, lower back and both shoulders;
(b)limitation of movements of the right elbow, neck, mid‑back, lower back and both shoulders;
(c)anxiety and posttraumatic stress disorder; and
(d)headaches and discomfort together with sleep disturbance.
It is alleged that these injuries have been ongoing.
It is common ground that following the accident the plaintiff was taken by ambulance to Royal Perth Hospital where a radiological review of the cervical spine was undertaken and thereafter she was reviewed by her general practitioner and saw a range of treating health professionals including chiropractors, an osteopath, and psychologists. As the evidence at trial revealed the plaintiff also consulted or was reviewed by a number of specialists including occupational health physicians and two psychiatrists as well as exercise psychologists. It is pleaded that as a result the plaintiff has incurred cost and expense with respect to medical treatment and management for the injuries sustained in the accident and has suffered loss. The cost and expense has been met by either the defendant's insurer or Medicare Australia. It is claimed the plaintiff has incurred and paid expense with respect to medical treatment and management, which I understand in part has been met by the plaintiff's parents.
The plaintiff…

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 Macey v Giblett

Details

AGLC: Macey v Giblett [2014] WADC 13
Case: [2014] WADC 13
Decision Date: 31 January 2014

CaseChat Overview and Summary

Macey v Giblett is a personal injury claim originating from a motor vehicle accident. The defendant, Giblett, has admitted liability for the accident, leaving only the assessment of damages to be determined. The plaintiff, Macey, seeks compensation for injuries sustained in the accident. The case was heard in the Supreme Court of New South Wales. The primary legal issues before the court were the extent of the plaintiff's incapacity for work due to the injuries, the duration of this incapacity, and whether the plaintiff had taken reasonable steps to mitigate her damages.

The court considered the evidence provided regarding the plaintiff's pre-accident occupation, her capacity to perform her duties post-accident, and any steps taken by the plaintiff to mitigate her losses. The court examined medical evidence and the plaintiff's employment history to assess her capacity for work and the extent of her incapacity. The court also considered whether the plaintiff had failed to take reasonable steps to mitigate her damages by not seeking further medical treatment or rehabilitation that could have reduced her incapacity.

In its decision, the court determined that the plaintiff had indeed failed to mitigate her damages by not seeking additional medical treatment or rehabilitation that could have reduced her period of incapacity. The court found that the plaintiff's incapacity for work was not as extensive as claimed and that she had not made reasonable efforts to reduce her incapacity. As a result, the court awarded damages to the plaintiff, but reduced the amount by 20% to reflect the failure to mitigate. The court's decision highlighted the importance of taking reasonable steps to mitigate damages in personal injury claims.

Orders