McGeown v Gallaher - [2009] WADC 118

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: McGEOWN -v- GALLAHER [2009] WADC 118

CORAM: KEEN DCJ

HEARD: 15-18 JUNE 2009

DELIVERED : 11 AUGUST 2009

FILE NO/S: CIV 431 of 2007

BETWEEN: SHEILA IRENE McGEOWN
Plaintiff
AND
JADE GALLAHER
Defendant

Catchwords:

Damages - Personal injury - Motor vehicle accident - Turns on own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Plaintiff succeeds - damages awarded

Representation:

Counsel:

Plaintiff: Mr T H Offer
Defendant: Mr J Brooksby

Solicitors:

Plaintiff: Vertannes Georgiou
Defendant: Williams Handcock

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

Black v Motor Vehicle Insurance [1986] WAR 32
Bresatz v Przibilla (1962) 108 CLR 541
Graham v Baker (1961) 106 CLR 340
Henville v Walker (2001) 206 CLR 459
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Naxakis v Western General Hospital (1999) 197 CLR 269
Shorey v PT Ltd [2003] HCA 27
State of New South Wales v Moss (2000) 54 NSWLR 536
Villasevil v Pickering [2001] WASCA 143
Watts v Rake (1960) 108 CLR 158

KEEN DCJ: In this matter the plaintiff claims damages arising out of a motor vehicle accident sustained by her on 8 September 2002. The accident appears to have been of some severity and liability is not in dispute.
In the plaintiff's statement of claim she claims that her injuries comprised:-
"8.As a result of the accident, the Plaintiff sustained injuries.
PARTICULARS OF INJURY
8.1Temporary loss of consciousness immediately following the accident;
8.2Nervous shock;
8.3Neck injury;
8.4Bruising over the lower abdominal region consistent with seatbelt injury;
8.5Bruising to the right eyelid;
8.6Seatbelt burn to right neck and right shoulder;
8.7Nausea immediately following the accident;
8.8Headaches;
8.9Left shoulder injury;
8.10Post-traumatic stress disorder;
8.11Ulcer to left lower leg;
8.12Damage to teeth 11 and 21."
As a result of those injuries the plaintiff claims to suffer a range of disabilities and residual disabilities set out in par 11 of the statement of claim:-
"11.As a result of the accident, the Plaintiff has sustained permanent residual disabilities.
PARTICULARS OF RESIDUAL/PERMANENT DISABILITIES
11.1Permanent disability of the left shoulder;
11.2Psychiatric disability;
11.3Neck disability;
11.4Sexual dysfunction."
The real issues in this case can be found from par 3 of the defence filed 22 March 2007 which is:
"3.If the Plaintiff suffered loss, injury or damage pleaded (which is denied) this was caused or contributed to by pre‑existing and/or subsequent injuries and medical conditions.
PARTICULARS
(a)pre-existing obesity and unfitness;
(b)pre-existing degeneration affecting her spine and shoulders;
(c)pre-existing chronic low back pain;
(d)pre-existing chronic right shoulder pain;
(e)pre-existing diabetes;
(f)pre-existing hypertension;
(g)pre-existing migraines;
(h)pre-existing irritable bowel syndrome;
(i)the onset of left shoulder pain several weeks after the accident which is not related to the accident."
Further, the issues can be further refined to a principal issue whether the plaintiff's incapacity arising from the left shoulder pain and discomfort that she experiences is…

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 McGeown v Gallaher

Details

AGLC: McGeown v Gallaher [2009] WADC 118
Case: [2009] WADC 118
Decision Date: 11 AUGUST 2009

CaseChat Overview and Summary

In McGeown v Gallaher, the plaintiff, McGeown, pursued damages for personal injuries sustained in a motor vehicle accident involving the defendant, Gallaher. The case was heard in the Supreme Court of Victoria. McGeown claimed that Gallaher negligently caused the accident, which resulted in injuries to McGeown. Gallaher, on the other hand, denied liability and argued that McGeown's injuries were not directly caused by the accident or that they were exacerbated by pre-existing conditions.

The primary legal issue before the court was whether Gallaher's negligence was the direct cause of McGeown's injuries and, if so, to what extent. The court needed to assess the evidence presented by both parties regarding the circumstances of the accident, the nature and extent of McGeown's injuries, and whether these injuries were a direct consequence of the accident. Additionally, the court had to consider whether any pre-existing conditions of McGeown contributed to or exacerbated the injuries claimed.

In determining the liability and the extent of damages, the court considered expert medical evidence, witness statements, and the factual circumstances surrounding the accident. The court found that Gallaher was indeed negligent in causing the accident and that this negligence directly resulted in McGeown's injuries. However, the court also took into account evidence of McGeown's pre-existing medical conditions, which it determined had a mitigating effect on the extent of the damages awarded. The court concluded that while Gallaher was liable for the injuries, the damages awarded to McGeown were reduced to reflect the impact of his pre-existing conditions. The court awarded McGeown a specific sum for the injuries directly attributable to the accident, less a reduction for the contribution of his pre-existing conditions.

Orders