Maja Seta v Geoffrey Baker

[2012] ACTSC 75

MAJA SETA v GEOFFREY BAKER

[2012] ACTSC 75 (18 May 2012)

PERSONAL INJURY – assessment of damages – causation – injury to lumbar spine – credit of plaintiff – pre-existing vulnerability – extent of ongoing disability – inferences drawn from failure to call potential witnesses.

Jones v Dunkel (1959) 101 CLR 298
Payne v Parker [1976] 1 NSWLR 199
Ibrahim v Pham [2007] NSWCA 215
Manly Council v Byrne (2004) NSWCA 123

No. SC 707 of 2009

Judge:              Sidis AJ
Supreme Court of the ACT

Date:               18 May 2012

IN THE SUPREME COURT OF THE       )
  )          No. SC 707 of 2009
AUSTRALIAN CAPITAL TERRITORY    )          

BETWEEN:MAJA SETA

Plaintiff

AND:GEOFFREY BAKER

Defendant

ORDER

Judge:  Sidis AJ
Date:  18 May 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. Verdict and judgment for the plaintiff in the sum of $179,409.
2. The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.
3. The exhibits are to be returned.
4. My reasons are published.

1. On 12 September 2006 Maja Seta was the front seat passenger in a Kia sedan car driven by her father when it was struck by the defendant’s Holden utility while negotiating a roundabout.  The defendant admitted negligence but challenged the plaintiff’s claim on a number of grounds.

1. The issues were

1        The way in which the accident occurred;

2        The causal connection, if any, between the accident and the condition of the plaintiff’s lumbar spine;

3        The extent of the plaintiff’s ongoing disability resulting from the accident;

4        The compensation, if any, to be awarded for general damages, loss of income earning capacity, out of pocket expenses and domestic care.

The plaintiff’s claim

1. At the time of the accident the plaintiff was 14 years old.  At the time of the hearing she was 20. 

1. After the accident she was taken home where her mother gave her Panadol and she rested.

1. Her general practitioner at the time, Dr Southi, recorded that she consulted him on the day of the accident and once more after the accident on 20 October 2006.

1. The plaintiff was next treated by Dr Watson on 17 May 2007.  The plaintiff complained of back pain at that consultation.  Dr Watson prescribed anti-inflammatory medication and referred the plaintiff to Dr Shane Watson, chiropractor.  Chiropractic treatment was provided twice weekly initially and then on an as needed basis.  The plaintiff said she consulted the chiropractor two to three times in the two months prior to the hearing.

1. In June 2007 Dr Watson administered trigger point injections to her back.  This treatment relieved the plaintiff’s symptoms for some months before they gradually returned.

1. The plaintiff said she became depressed because of the effect that her symptoms had on her social life and sporting activities.  She became withdrawn and suffered from anxiety when travelling as a passenger in a car.  Dr Watson prescribed anti-depressant medication that the plaintiff used for a short term only because of their unpleasant side-effects.  She was referred to a psychologist but did not…