McFadyen v Jenson

[2015] ACTSC 12

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

McFadyen v Jenson & Anor

Citation:

[2015] ACTSC 12

Hearing Dates:

11 April 2014, 26 May 2014, 16, 17 October 2014

DecisionDate:

13 February 2015

Before:

Burns J

Decision:

There will be judgment for the plaintiff in the sum of $104,447.95.

The defendants are to pay the plaintiff’s costs of the proceedings unless some other costs order is sought within 14 days.

Category:

Principal Judgment

Catchwords:

TORTS – Negligence – road accident cases – liability admitted – assessment of damages.

Parties:

David McFadyen (Plaintiff)

Andrew Jenson (First Defendant)

Insurance Australia Limited (Second Defendant)

Representation:

Counsel

Mr Muller (Plaintiff)

Mr Pappas (Defendants)

Solicitors

Maliganis Edwards Johnson (Plaintiff)

Sparke Helmore (Defendants)

File Number:

SC 892 of 2011

Burns J:

1. On 7 March 2009 the plaintiff was driving a motor vehicle which was stationary in traffic on Sulwood Drive at Kambah when a vehicle driven by the first defendant collided with the rear of the plaintiff’s vehicle. The second defendant is the first defendant’s third party insurer. As a consequence of this collision the plaintiff suffered injury, although the extent of that injury is in dispute. The defendants have admitted liability, and the matter proceeded as an assessment of damages only.

The plaintiff’s evidence

1. The plaintiff was 17 years old at the time of the collision, and was attending year 12. He was a keen sportsman, who had played different sports from an early age. He had suffered a number of minor injuries while playing sport, but he suffered no ongoing effects of these injuries. In early 2009, prior to the 7 March accident, the plaintiff was involved in a minor, low speed collision while reversing his car in the school car park, but suffered no injury.

1. In 2008 he was admitted into the Gifted Sports Program at Mary MacKillop College, which involved participation in weight training and skills training alongside his academic program. In the same year he also started to do some part time work after school and on weekends at a fast food restaurant called Zing Fish. In that year he also obtained work with a landscaping firm during the school holidays. This was physically demanding work. The plaintiff testified that he did not have any problems physically undertaking that work, and in particular did not experience pain in his back. He was paid approximately $25.00 an hour.

1. In 2008 the plaintiff also commenced playing Division 1 AFL on weekends for Tuggeranong. He injured his sternum while playing AFL resulting in him missing a couple of games, but otherwise he completed the season without any physical restrictions, and in particular without any pain in his back.

1. On 7 March 2009 the plaintiff was driving on Sulwood Drive, Kambah when he stopped behind a vehicle which was waiting to make a right-hand turn. He looked in his rear vision mirror and saw a vehicle approaching from behind “fairly quickly”. This was the first defendant’s vehicle, which collided with the rear of…