McCreary v Whitney - [1987] TASSC 43

TASSC A39/1987

CITATION: McCreary & Anor v Whitney [1987] TASSC 43; A39/1987

PARTIES:  McCREARY, Noel Hay
  McCREARY, Doreen Rose
  v
  WHITNEY, Brett Ronald

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  LDR 410/1986
DELIVERED ON:  22 July 1987
DELIVERED AT:
HEARING DATE:
JUDGMENT OF:  Cox J

CATCHWORDS:

REPRESENTATION:

Counsel:
             Plaintiffs:
             Defendant:
Solicitors:
             Plaintiffs:
             Defendant:

Judgment Number: TASSC A39/1987
Number of paragraphs: 23

Serial No A39/1987
File No LDR 410/1986

NOEL HAY McCREARY & DOREEN ROSE McCREARY
v BRETT RONALD WHITNEY

REASONS FOR JUDGMENT COX J
22 July 1987

This is an assessment of damages claimed by each plaintiff for personal injuries sustained when struck by a motor vehicle while they were crossing the road on foot on the 12 September 1985.

Both plaintiffs are aged 59 years. The first named plaintiff is now retired from a senior position in the insurance industry. He sustained severe bruising on the radial aspect of the palm of the right hand, but was not admitted to hospital after the impact. In the opinion of orthopaedic surgeon Mr. Dermot Morgan he sustained a severe sprain of the wrist and could be suffering from some instability between some of his carpal bones in that joint. Mr. Morgan thought it likely that the male plaintiff would be left with a permanent disability due to his wrist injury which the doctor assessed at approximately 10% of the right arm as a whole. In a report made some 14 months before the trial Mr. Morgan expressed the view that it was more likely that the male plaintiff would develop arthritis in the future and require medication more regularly. Although he did not consider it likely that the symptoms would become really severe, a wrist arthrodesis might require consideration if they did. On present day values the overall costs of such surgery and hospitalisation would be in the order of $2,000. At the trial Mr.Morgan said that he still considered arthritis a possibility and that the plaintiff would require medication more regularly. He conceded however, having heard some of the evidence of the plaintiff, that he appeared to have improved slightly since his last examination and that the chances of an arthrodesis being required were reduced.

The male plaintiff prior to the accident had enjoyed good health and his main pursuits had been gardening, boating and fishing and restoring antique furniture. Since the accident the right wrist aches most of the time and using it for any length of time aggravates the pain. Activities such as hammering, digging and hoeing, or anything of a jarring nature, produce a dull ache causing him to desist from them. He takes medication regularly and uses a wrist brace or thermo–glove to reduce the pain when his wrist is worrying him. He is still able to engage in most of his pre–accident activities, but if he uses his wrist vigorously it causes pain.

While not a major disability the injury sustained by the male plaintiff is chronic. It is limiting in…

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 McCreary v Whitney

Details

AGLC: McCreary v Whitney [1987] TASSC 43
Case: [1987] TASSC 43
Decision Date: 22 July 1987

CaseChat Overview and Summary

The case of McCreary & Anor v Whitney before the Supreme Court of Tasmania involves an assessment of damages claimed by Noel Hay McCreary and Doreen Rose McCreary for personal injuries sustained in a motor vehicle accident on 12 September 1985. Noel, aged 59, suffered a severe sprain of the wrist, while Doreen, also aged 59, sustained a transient loss of consciousness, undisplaced skull fracture, and soft tissue damage to her lumbar spine, among other injuries. The court was tasked with determining the appropriate general damages for both plaintiffs based on their injuries, ongoing pain and suffering, and the impact on their lifestyles and enjoyment of life.

The legal issues the court needed to resolve included the extent and permanency of the injuries, the quantification of general damages, and the consideration of future medical needs and lifestyle changes. Specifically, the court had to assess the probability of arthritis in Noel's wrist and its potential treatment, as well as the chronic pain and restricted activities for Doreen. Furthermore, the court considered the loss of enjoyment of a planned holiday to the Cook Islands, which was cancelled due to Doreen's injuries, and whether this constituted a recoverable loss of amenity.

The court's reasoning, as delivered by Cox J, involved a detailed analysis of medical evidence, expert opinions, and the plaintiffs' testimonies. For Noel, the court found a 10% permanent disability of his right arm and awarded $7,000 in general damages, taking into account the ongoing pain, medication costs, and potential future surgery. For Doreen, the court assessed her injuries as causing moderate to severe ongoing pain and significant lifestyle restrictions. The court awarded her $20,000 in general damages, reflecting the loss of enjoyment of life, reduced ability to engage in hobbies, and the cancelled holiday, which was deemed a reasonably foreseeable consequence of the accident.

The final orders of the court included the assessment of general damages for Noel at $7,000 and for Doreen at $20,000, inclusive of the additional compensation for the lost holiday opportunity. This comprehensive approach ensured that the plaintiffs were fairly compensated for the physical, emotional, and lifestyle impacts of the accident.

Orders