McPherson v Dowell

Case [2018] NSWDC 348

District Court


New South Wales

Medium Neutral Citation: McPherson v Dowell [2018] NSWDC 348
Hearing dates: 19 September 2018 – 20 September 2018; 30 October 2018 – 1 November 2018
Date of orders: 21 November 2018
Decision date: 21 November 2018
Jurisdiction:Civil
Before: Dicker SC DCJ
Decision:

(1) Judgment for the plaintiff against the defendant.
(2) I reserve the question of costs for further submission or agreement.
(3) The parties are to bring in agreed short minutes of order within 14 days reflecting these reasons for decision.
(4) The parties have liberty to apply to the Associate to Dicker DCJ on three business days’ notice.
(5) Exhibits to be returned after 28 days.

Catchwords: Torts – negligence – motor vehicle accident – plaintiff with very extensive prior medical history – serious injury to left knee about two weeks prior to subject accident – serious injury after motor vehicle accident - proper approach – liability not in issue – contributory negligence in issue – whether substantial discount in damages warranted
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW)
Civil Liability Act 2002 (NSW)
Cases Cited: Allen v Chadwick (2015) 256 CLR 148
Croucher v Cachia [2016] NSWCA 132
Cubillo v Commonwealth of Australia (No 2) [2000] FCA 1084; (2000) 103 FCR 1
Curtis v Harden Shire Council [2014] NSWCA 314
Dal v Chol [2018] NSWCA 219
Danckert v Tonkin [2015] NSWSC 1570
Gulic v Angelovski [2018] NSWCA 161
Hyjer v Lopes [2018] NSWDC 8
Jay v Baker [2018] NSWDC 270
Malec v JC Hutton [1990] HCA 20; (1990) 169 CLR 638
Metaxoulis v McDonalds Australia Ltd [2015] NSWCA 95
Metro North Hospital and Health Service v Pierce [2018] NSWCA 11
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208
Serrao v Cornelius (No 2) [2016] NSWCA 231
Smith v Zhang [2012] NSWCA 142
Strong v Woolworths Ltd (2012) 246 CLR 182
Trazivuc v Motor Accidents Authority [2010] NSWCA 287
Wallace v Kam (2013) 250 CLR 375
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Category:Principal judgment
Parties: Gael McPherson (Plaintiff)
Margaret Dowell (Defendant)
Representation:

Counsel:
K Balendra (Plaintiff)
J Catsanos (Defendant)

  Solicitors:
Slater & Gordon (Plaintiff)
McCabe Curwood (Defendant)
File Number(s): 2018/00009544

Judgment

  1. In these proceedings, the plaintiff, Ms Gael McPherson, brings a claim for damages in negligence under the Motor Accidents Compensation Act 1999 (NSW) (“MACA”) for injuries allegedly sustained in a motor vehicle accident which occurred on 26 April 2013 in Collins Street in Kiama in New South Wales. It is alleged by the plaintiff that she was struck by a car driven by the defendant who was reversing out of an angled car space on the side of the street as is typical in many New South Wales country towns. Ms McPherson asserts that after she was struck by the car on her right side she then fell to her right, sustaining a number of injuries.

  2. Breach of a…

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AGLC
McPherson v Dowell [2018] NSWDC 348
Case
[2018] NSWDC 348
Decision Date

CaseChat Overview and Summary

McPherson v Dowell is a case before the court where the plaintiff, McPherson, sought damages from the defendant, Dowell, for injuries sustained in a motor vehicle accident. The plaintiff had already suffered a serious injury to their left knee about two weeks prior to the accident in question, which resulted in further injuries. The court was tasked with determining whether the plaintiff's pre-existing medical condition warranted a substantial discount in the damages awarded for the injuries sustained in the recent accident. Liability in the case was not contested, leaving only the issue of contributory negligence to be resolved.

The court considered the extent to which the plaintiff's pre-existing medical condition contributed to the severity of the injuries sustained in the accident. The plaintiff argued that the prior injury did not significantly impact the severity of the recent injuries, while the defendant contended that the pre-existing condition should lead to a substantial reduction in the damages awarded. The court had to determine the appropriate approach in assessing contributory negligence in this context, balancing the plaintiff's prior medical history with the impact of the recent accident.

In its decision, the court found that the plaintiff's pre-existing medical condition did not warrant a substantial discount in the damages awarded for the injuries sustained in the recent accident. The court held that the plaintiff was not negligent in the way they managed their pre-existing condition, and that the recent accident was a significant contributing factor to the severity of the injuries. As a result, the court determined that the plaintiff was entitled to recover damages from the defendant for the injuries sustained in the accident, without a substantial reduction due to the pre-existing condition.

The court's final orders were to enter judgment in favour of the plaintiff against the defendant, reserving the question of costs for further submission or agreement. The parties were directed to bring in agreed short minutes of order within 14 days, reflecting the court's reasons for decision. Additionally, the parties were granted liberty to apply to the Associate to Dicker DCJ on three business days’ notice. The exhibits were to be returned after 28 days.

Orders

Orders of the court

(1) Judgment for the plaintiff against the defendant.

(2) I reserve the question of costs for further submission or agreement.

(3) The parties are to bring in agreed short minutes of order within 14 days reflecting these reasons for decision.

(4) The parties have liberty to apply to the Associate to Dicker DCJ on three business days’ notice.

(5) Exhibits to be returned after 28 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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