Millbrook v Davies No. DCCIV-01-444 - [2004] SADC 66

Meredith Anne Millbrook v Kathryn Davies
[2004] SADC 66
CIVIL
JUDGE DAVID SMITH

This is an assessment of damages. The plaintiff claims damages against the defendant for personal injuries and consequential losses arising from a motor vehicle collision which occurred on Daws Road on the afternoon of the 6^th April 1998. The defendant drove her vehicle into the rear of a motor vehicle in which the plaintiff was a front seat passenger. The plaintiff was wearing a seat belt at the time.
This action is subject to the constraints of s35A of the Wrongs Act 1936 (SA) (as amended). Section 35A has been repealed by s20A of the Wrongs (Liability and Damages for Personal Injury) Amendment Act 2002. However, the new provisions, which came into operation on the 1^st December 2002, do not apply to this claim because the motor vehicle collision which gave rise to this action occurred before the commencement date of the new provisions.
The Claim – The Defence
In summary, the plaintiff alleges that she sustained:
·a spraining injury to her cervical spine;
·a rotator cuff tendonitis or sub-acromial impingement of the right shoulder;
·migraine headaches; and
·a Post-Traumatic Stress Disorder and an Adjustment Disorder with depressed mood.
She alleges that these injuries have not only caused her ongoing pain and suffering but more particularly have permanently incapacitated her from work as a nurse at the Repatriation General Hospital. She claims damages for a number of non-economic and economic losses.
The defendant resists these claims and contends, inter alia, that some of the claimed disabilities pre-existed the accident and/or are disabilities which would have emerged in any event. In particular, the defence queries whether the shoulder injury was caused by the collision at all.
Credibility and Reliability
Defence counsel, Mr James, contended that generally I could accept the plaintiff as credible and reliable. But he then added what he called a number of caveats. He submitted that the plaintiff, in her evidence, was occasionally deliberately uncooperative and even “a little bit belligerent”. He contended that in respect of her complaints about the onset of migraine headaches and as to the range of movement of her right arm, as a consequence of her alleged shoulder injury, her evidence was inconsistent with her presentation to the various treating medical practitioners. Finally, he said that she exaggerated her symptoms, though probably not deliberately. So, said Mr James, her evidence should be weighed with caution.
There were a number of distressful topics of family history, the relevance of which would not have been immediately obvious to the plaintiff. Understandably she was reluctant to elaborate upon them. She was perhaps “a little bit belligerent”. In my view this did not impair her credit. It was an understandable reaction to the intrusiveness of the legal process. Further, I do not find the points made about her lack of consistency at all compelling. In all, I accept the plaintiff as a truthful witness. So too, I accept her as a…

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.

Keep reading for free

Create a free CaseChat account to read Millbrook v Davies No. DCCIV-01-444 and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] SADC 66
Decision Date: 6 May 2004

CaseChat Overview and Summary

The case of Millbrook v Davies involved a claim for damages for personal injuries and consequential losses arising from a motor vehicle collision. The plaintiff, Meredith Anne Millbrook, alleged that she sustained various injuries including a spraining injury to her cervical spine, a rotator cuff tendonitis or sub-acromial impingement of the right shoulder, migraine headaches, and psychological injuries such as Post-Traumatic Stress Disorder and an Adjustment Disorder with depressed mood. The defendant, Kathryn Davies, resisted the claims and argued that some of the claimed disabilities pre-existed the accident or were likely to emerge in any event. The court found that the plaintiff was a credible and reliable witness and accepted her evidence regarding the injuries and their impact on her life. The court also accepted the evidence of the treating medical practitioners and the diagnosis of the plaintiff's psychological injuries. The court assessed the damages for non-economic loss, past economic loss, future economic loss, loss of superannuation benefits, special damages, interest on special damages, future medical expenses, and gratuitous household services. The total amount of damages awarded was $354,791.27. The court did not enter judgment for the above sum and asked the parties to be heard as to what sums had already been paid to the plaintiff by the defendant.

Orders