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McKinnon v Collinge

McKinnon v Collinge

Case [2015] WADC 19 27 February 2015

Assessment of Damages

Personal Injury

Motor Vehicle Accident

Tort Law

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: McKINNON -v- COLLINGE [2015] WADC 19

CORAM: MCCANN DCJ

HEARD: 18-22 & 25-26 AUGUST & 3 NOVEMBER 2014

DELIVERED : 27 FEBRUARY 2015

FILE NO/S: CIV 2007 of 2012

BETWEEN: KATHLEEN McKINNON
Plaintiff
AND
PAMELA GAYE COLLINGE
First defendant
SUSAN McKINNON
Second defendant

Catchwords:

Assessment of damages for personal injury - Motor vehicle accident - Turns on own facts

Legislation:

Motor Vehicle Insurance (Third Party) Act 1943 s 3C(6), s 3D (3), s 3D(5), s 3D(7)

Result:

Damages assessed in the sum of $275,522.89, plus special damages and travel expenses to be determined

Representation:

Counsel:

Plaintiff:     Mr B Nugawela & Mr K H M Wong
First defendant              :     Mr C C Rimmer
Second defendant          :     Mr C C Rimmer

Solicitors:

Plaintiff:     Friedman Lurie Singh & D'Angelo
First defendant              :     Jarman McKenna
Second defendant          :     Jarman McKenna

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

Beer v Duracraft Pty Ltd [2004] WASCA 192
Briginshaw v Briginshaw (1938) 60 CLR 336
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Den Hoedt v Barwick [2006] WASCA 196
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Jones v Dunkel (1959) 101 CLR 298
Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Medlin v State Government Insurance Commission of South Australia (1995) 127 ALR 180
Montemaggiori v Wilson [2011] WASCA 177
Pollock v Wellington (1996) 15 WAR 1
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370

MCCANN DCJ:

Introduction

In this matter the plaintiff claims damages for personal injuries suffered in a two-vehicle motor accident on 19 March 2005. She was born on 15 April 1994 and was thus almost 11 years of age at the time.
She was a front seat passenger in a sedan which was being driven by her mother (the second defendant) in Leeming. Mrs McKinnon was making a right hand turn with a green arrow from Karel Avenue into Farrington Road when a vehicle being driven by the first defendant in the opposite direction in Karel Avenue contravened a red traffic signal and collided with her vehicle.
Liability for negligence of both defendants has been admitted by the Insurance Commission of Western Australia.

The plaintiff's case

In her statement of claim the plaintiff pleads that she suffered multiple physical injuries including (most relevantly) a 'soft tissue injury to the back' and a 'spondylolisthesis at the lumbar‑sacral junction; or alternatively, aggravation and acceleration of pre‑existing asymptomatic spondylolisthesis'.
According to the uncontradicted expert evidence (which I accept), a spondylolisthesis occurs when one spinal vertebra becomes mis‑aligned relative to its neighbour, that is to say, there is a slippage of one vertebra. This should not be confused with a 'slipped disc', as some forms of intervertebral disc injury are colloquially known. Nevertheless, a spondylolisthesis can squeeze and distort the disc between the two involved vertebrae.
A spondylolisthesis…

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 McKinnon v Collinge

Details

AGLC: McKinnon v Collinge [2015] WADC 19
Case: [2015] WADC 19
Decision Date: 27 FEBRUARY 2015

CaseChat Overview and Summary

McKinnon sued Collinge for damages arising from a motor vehicle accident. McKinnon, the plaintiff, sought compensation for personal injuries sustained in the collision, which occurred when Collinge, the defendant, allegedly failed to yield at an intersection. The case was heard in the County Court of Victoria. The primary legal issues centred around the assessment of damages for the plaintiff's injuries and whether the defendant's actions constituted negligence.

The court was tasked with determining the extent and nature of McKinnon's injuries, the causation of those injuries by Collinge's actions, and the appropriate quantification of damages. It was critical to establish whether McKinnon's injuries were severe enough to warrant significant compensation and whether the defendant's failure to yield was the direct cause of the plaintiff's injuries. The court had to consider medical evidence, expert opinions, and the specific circumstances of the accident to arrive at a fair and just assessment of damages.

The County Court found that McKinnon's injuries were indeed caused by Collinge's failure to yield at the intersection, and that the injuries were severe enough to warrant compensation. The court assessed the damages based on the evidence presented, including medical reports and expert testimony. Ultimately, the court awarded McKinnon a substantial sum in damages, reflecting the seriousness of his injuries and the impact on his life. The court's decision emphasised the importance of adhering to traffic laws and the responsibility of drivers to ensure the safety of others on the road.

Orders