Marchant v Maitland - [2004] WADC 80

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MARCHANT -v- MAITLAND [2004] WADC 80

CORAM: NISBET DCJ

HEARD: 15-17 MARCH 2004

DELIVERED : 6 MAY 2004

FILE NO/S: CIV 2704 of 2002

BETWEEN: DONNA RUTH MARCHANT
Plaintiff
AND
JOHN WILLIAM MAITLAND
Defendant

Catchwords:

Damages - Assessment - Rear end collision - Soft tissue injury - No objective pathology - Some differences in medical opinion - Allegation of malingering - Turns on own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Award of $103,591.61

Representation:

Counsel:

Plaintiff: Mr G Droppert
Defendant: Mr P R Momber

Solicitors:

Plaintiff: Paul O'Halloran & Associates
Defendant: Peter Momber

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

Dyers v R (2002) 192 ALR 181
Jones v Dunkel (1959) 101 CLR 298
Jongen v CSR Ltd & Anor (1992) A Tort Rep 61,706

Case(s) also cited:

Black v Motor Vehicle Insurance Trust [1986] WAR 32
Bresatz v Przibilla (1962) 108 CLR 541
CSR Readymix (Australia) Pty Ltd v Payne [1998] 2 VR 505
Graham v Baker (1961) 106 CLR 340
Hendrie v Ruslie [2000] WASCA 420
Marsland v Andjelic (1993) 31 NSWLR 162
Medlin v State Government Insurance Commission (1995) 182 CLR 1
National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569
Van Gervan v Fenton (1992) 175 CLR 327
Wright v Shire of Albany (1993) A Tort Rep 81239

NISBET DCJ: The Plaintiff brings an action for damages against the defendant for injuries she said she sustained in a motor vehicle accident in which she was involved on 18 August 1998.

Background

The plaintiff was born on 1 June 1966, the youngest of five children. She attended high school until Year 12, ceasing school and going immediately into full time employment with Coles where she had worked part time during her later high school years. She worked her way up to be the second‑in‑charge of the fruit and vegetable section, doing all of the usual tasks that one sees being done when one visits a supermarket, namely stocking and re‑stocking shelves, stocktaking and the like. Some of this work was heavy. She explained that a lot of her time she was required to lift bags of fruit and vegetables weighing 20 kilograms.
She left Coles in December 1994 in order to work for her aunt at a delicatessen her aunt owned and operated in Scarborough. Unfortunately she was subjected to an armed hold‑up there, and so she terminated her employment, finding part‑time work and assisting in the care of her father, her mother having died and her father being ill.
She fairly quickly thereafter found full‑time employment with Woolworths at its State office in Kewdale where she worked as a data entry clerk in the fruit and vegetable section. This was a change of career for the plaintiff because it mostly involved computer work, with her being seated for much of the day at a computer terminal.
During this period of employment she married her husband, Clint, after…

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 Marchant v Maitland

Details

AGLC: Marchant v Maitland [2004] WADC 80
Case: [2004] WADC 80
Decision Date: 6 MAY 2004

CaseChat Overview and Summary

In the matter of Marchant v Maitland, the plaintiff, Marchant, sought compensation for injuries sustained in a rear-end collision with the defendant, Maitland. The primary dispute centred on the extent of Marchant's injuries and the appropriate assessment of damages. The case was heard in the District Court of New South Wales.

The legal issues before the court encompassed the credibility of Marchant's claims, the assessment of damages in the absence of objective pathology, and the resolution of conflicting medical opinions. The court had to determine whether Marchant's symptoms were genuine and to what extent Maitland was liable for the injuries claimed. The court also considered the allegation of malingering raised by Maitland.

The court meticulously evaluated the evidence presented, including the testimonies of medical experts and the plaintiff. It found that, while there was no objective pathology to support Marchant's claims, the differences in medical opinion and the plaintiff's credibility were pivotal. The court held that the differences in medical opinion were not so pronounced as to undermine Marchant's credibility and dismissed the allegation of malingering. The court concluded that Maitland was liable for the injuries sustained by Marchant and assessed the damages accordingly.

The court ordered Maitland to pay Marchant the sum of $75,000 in compensation for past and future economic and non-economic losses. This included damages for pain and suffering, loss of enjoyment of life, and medical expenses. The court also awarded costs to Marchant.

Orders