Mathews v USDD - [1999] NSWSC 1141

CITATION: Mathews v USDD [1999] NSWSC 1141 revised - 02/12/99

CURRENT JURISDICTION: Equity Division
Admiralty List

FILE NUMBER(S): 6/1999

HEARING DATE(S): 17/11/99, 18/11/99

JUDGMENT DATE:
30 November 1999

PARTIES :

Fiona Amanda Squire Mathews - Plaintiff
The United States Department of Defence - Defendant

JUDGMENT OF: Rolfe J

COUNSEL : Mr C.C. Branson QC/Mr J.T. De Berg - Plaintiff
Mr R.R. Stitt QC/Mr G.M. Watson - Defendant

SOLICITORS: Keddies - Plaintiff
Allen Allen & Hemsley - Defendant

CATCHWORDS:

DECISION: Judgment for the plaintiff against the defendant in the sum of $94,070.20

I N D E X

Page
Introduction 1
Negligence 6
Damages 14
(a) The Plaintiff’s History And Complaints 14
(b) The Plaintiff’s Cross-Examination 27
Conclusions 47
Damages For Pain And Suffering 51
Past Economic Loss And Future Loss Of Earning Capacity 53
Past Wage Loss 54
Loss Of Future Earning Capacity 61
The Griffiths v Kerkemeyer Claim 65
Amounts 67
Orders 68

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
ADMIRALTY LIST

ROLFE J

TUESDAY, 30 NOVEMBER 1999

6/1999 - MATHEWS v THE UNITED STATES DEPARTMENT OF DEFENCE

JUDGMENT

HIS HONOUR:
Introduction

1    On or about 2 May 1992 the “USS Independence”, (“the vessel”), which was, at the time, probably the largest aircraft carrier in the world and which was owned by the defendant, The United States Department of Defence, for which Mr R.R. Stitt of Queen’s Counsel and Mr G.M. Watson of Counsel appeared, and a number of other United States Navy vessels, arrived in Sydney Harbour. The occasion for the visit was the celebration of the 50th Anniversary of the Battle of the Coral Sea, and the vessel moored at Garden Island.
2    On the evening of 2 May 1992 the defendant, or those for whom it was responsible, arranged a cocktail party on the vessel to which, amongst a large number of others, the plaintiff, Ms Fiona Amanda Squire Mathews, for whom Mr C.C. Branson of Queen’s Counsel and Mr J.T. De Berg of Counsel appeared, and her then husband, Mr Elbert Lynn Mathews, were invited. The reasonable inference is that all guests were invited and, accordingly, those, including the plaintiff and Mr Mathews, were boarding the vessel at the defendant’s invitation. So much was not in issue.
3    The plaintiff and Mr Mathews travelled to the dock by car and proceeded to board by ascending a gangway basically in single file in a line of guests. The gangway ran parallel to the side of the vessel, to the point where guests could obtain access to her. The plaintiff was walking in front of Mr Mathews.
4    There was a platform at the top of the gangway, which, on the evidence I accept, was approximately several metres long and slightly shorter in width. It was covered with a blue type of carpet and persons boarding the vessel stepped from the gangway onto the platform and then turned left towards the vessel. The platform was above deck level and to move from it to the deck…

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 Mathews v USDD

Details

AGLC: Mathews v USDD [1999] NSWSC 1141
Case: [1999] NSWSC 1141
Decision Date: 30 November 1999

CaseChat Overview and Summary

The case of Mathews v USDD involved a claim by Fiona Amanda Squire Mathews against the United States Department of Defence for injuries she suffered when she fell while boarding the USS Independence in Sydney Harbour. The primary legal issue was whether the defendant was negligent in failing to provide assistance or a handrail when guests boarded the vessel, resulting in the plaintiff's fall. The court found that the defendant was negligent as it had personnel on duty to assist guests but failed to assist the plaintiff when she fell. The court rejected the defendant's submission that the plaintiff's failure to have her heel caught in the carpet constituted contributory negligence.

In relation to damages, the court found that the plaintiff's subjective complaints of pain were unsatisfactory and difficult to accept given the evidence. It awarded $42,100 for past and future pain and suffering, $12,876 for out-of-pocket expenses, and $34,242 for loss of future earning capacity, for a total judgment of $94,070.20 in favour of the plaintiff. The court found that the plaintiff had failed to prove any past wage loss or the amount of any future loss of earnings. It did, however, award a small amount for future earning capacity as a buffer against any future downturn in employment.

The court awarded the plaintiff general damages for pain and suffering related to her back and wrist injuries, finding that the fall exacerbated her pre-existing back condition but that the condition had substantially recovered by October 1992. It found that the fracture of her right wrist was directly caused by the fall. The court also awarded damages for domestic care under Griffiths v Kerkemeyer for the period up until October 1992, when the court found the plaintiff's back injury had stabilised. The court declined to award any future damages for domestic care relating to the wrist injury.

In summary, the court found the defendant negligent but awarded relatively modest damages to the plaintiff given the lack of evidence to support a higher award, particularly in relation to loss of earnings. The court's findings and reasons provide useful guidance on the assessment of damages in personal injury cases involving pre-existing conditions.

Orders