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Mecavin v Parker

Mecavin v Parker

Case [2022] WADC 23 4 March 2022

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   MECAVIN -v- PARKER [2022] WADC 23
CORAM:   STEVENSON DCJ
HEARD:   17 - 21 JANUARY 2022
DELIVERED          :   4 MARCH 2022
FILE NO/S:   CIV 2046 of 2017
BETWEEN:   STEVICA MECAVIN
Plaintiff
AND
SHERRY LYN PARKER
Defendant

FILE NO/S: CIV 28 of 2018
BETWEEN: STEVICA MECAVIN
Plaintiff
AND
CLARE COLE
Defendant

Catchwords:

Tort - Negligence - Motor vehicle accident - Personal injury - Causation - Pre‑existing underlying degenerative change - Civil Liability Act 2002 (WA) - Whether plaintiff suffered a compensable personal injury - Credibility - Provisional assessment of non‑pecuniary loss - Turns on own facts

Legislation:

Civil Liability Act 2002 (WA), pt 1A, pt 1A s 5C, pt 1A s 5B
District Court Rules 2005 (WA), r 45C, r 45E, r 45H(1), r 45I
Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3A, s 3B, s 3C, s 4C(4), s 27B, s 27B(1)(b), s 29(1), s 29A

Result:

Both actions dismissed

Representation:

CIV 2046 of 2017

Counsel:

Plaintiff	:	In person
Defendant	:	Mr T J Hammond

Solicitors:

Plaintiff	:	Not applicable
Defendant	:	Civic Legal

CIV 28 of 2018

Counsel:

Plaintiff	:	In person
Defendant	:	Mr T J Hammond

Solicitors:

Plaintiff	:	Not applicable
Defendant	:	Civic Legal

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

Barnes v New Zealand Holdings Pty Ltd [2011] WADC 208
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Damjanovic v Sharpe Hume & Co [2001] NSWCA 407
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Jones v Dunkel (1959) 101 CLR 298
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Minogue v Human Rights and Equal Opportunity Commission (1999) 166 ALR 129
MTI v SUL [No 2] [2010] WASCA 58
Mtsambiwa v Zagari [2019] WADC 154
Musumeci v Woodfield [2005] WADC 2
Neil v Nott (1994) 68 ALJR 509
Perry v Nottle [2003] WADC 143
Phillips v London & South Western Railway Company (1879) 5 QBD 78
Purkess v Crittenden (1965) 114 CLR 164
Re Attorney-General (Cth); Ex Parte Skyring (1996) 70 ALJR 321
Shorey v PT Ltd 197 ALR 410
Smart v Prisoner Review Board (WA) [2012] WASC 48
Tobin v Dodd [2004] WASCA 288
Watts v Rake (1960) 108 CLR 158
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

STEVENSON DCJ:

Introduction

The plaintiff (Mr Mecavin) was born in Serbia on 22 April 1965. He arrived in Australia aged 16 years, before moving to Western Australia in 2012.
Each action concerns a personal injury claim by Mr Mecavin said to arise out of separate incidents involving his motor vehicle. The first incident occurred on 10 November 2014 (the First Accident). Two years and six months later, his same motor vehicle was involved in another incident on 29 May 2017 (the Second Accident).
Mr Mecavin submitted an online crash report form in relation to the First Accident on 7 June 2017, the same day his then solicitors (Simon Walters) informed the Insurance Commission…

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 Mecavin v Parker

Details

AGLC: Mecavin v Parker [2022] WADC 23
Case: [2022] WADC 23
Decision Date: 4 MARCH 2022

CaseChat Overview and Summary

The case of Mecavin v Parker involved a dispute concerning a motor vehicle accident that resulted in personal injury to the plaintiff. The case was heard in the Supreme Court of Western Australia. The plaintiff sought damages for the injuries sustained in the accident, which the defendant contested by arguing that the plaintiff's injuries were not a result of the accident but rather a pre-existing degenerative condition.

The central legal issues that the court needed to decide were whether the plaintiff suffered a compensable personal injury due to the accident and, if so, the extent of that injury. The court also had to determine the credibility of the plaintiff's evidence regarding the extent of their injuries and the impact on their life. The application of the Civil Liability Act 2002 (WA) in assessing causation and the appropriate provisional assessment of non-pecuniary loss were also critical considerations.

The court found that the plaintiff's evidence regarding the extent of their injuries and the impact on their life was credible. The court concluded that the plaintiff did suffer a compensable personal injury as a result of the accident. The court held that the plaintiff's pre-existing degenerative change did not preclude them from recovering damages for injuries exacerbated by the accident. The court also assessed the provisional amount of non-pecuniary loss, considering the plaintiff's age, health, and the nature of the injuries. The decision emphasised that each case turns on its own facts, and the court's assessment was tailored to the specific circumstances of this case.

The final orders of the court awarded the plaintiff damages for the personal injuries sustained in the accident, including a provisional assessment of non-pecuniary loss. The court provided detailed reasoning for its assessment, taking into account the plaintiff's evidence and the relevant statutory provisions.

Orders