NICHOLLS-CHAPPELL v Irving - [2000] WADC 87

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: NICHOLLS-CHAPPELL -v- IRVING
[2000] WADC 87

CORAM: COMMISSIONER EATON

HEARD: 24 AND 25 NOVEMBER 1999

DELIVERED : 11 APRIL 2000

FILE NO/S: CIV 1511 of 1997

BETWEEN: CHRISTOPHER EUGENE NICHOLLS-CHAPPELL
Plaintiff
AND
RICHARD ANDREW IRVING
Defendant

Catchwords:

Torts - Negligence - Motor vehicle accident and provisional assessment of damages - Turns on own facts.

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Plaintiff's claim dismissed. Provisional assessment of damages.

Representation:

Counsel:

Plaintiff: Mr B G Bradley
Defendant: Mr J G Staude

Solicitors:

Plaintiff: Kuscevich & Associates
Defendant: John G Staude

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

Fox v Wood (1981) 148 CLR 384
Jongen v CSR Ltd & Anor (1992) Aust Torts Reports 81-192
Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997

Case(s) also cited:

Bowen v Tutte (1990) Aust Torts Reports 81-043
Douty v Watson, unreported; DCt of WA; Library No 4679; 3 November 1995
Feher v Perrett Traders Pty Ltd (1988) 6 MVR 433
Moralee v Mosey (1990) 11 MVR 65
Nesterczuk v Mortimer (1965) 115 CLR 140
Thomas v O'Shea (1989) Aust Torts Reports 80-251
Wheatland v Dickson (1995) 22 MVR 431

COMMISSIONER EATON: In this case the plaintiff and the defendant were driving their respective four wheel drive vehicles on the Port Hedland/Marble Bar Road on 8 August 1994. The plaintiff was travelling west towards Port Hedland. The defendant was travelling east towards Marble Bar. Each was alone in their vehicle.
The plaintiff had been working at Telfer, an isolated mining settlement. On the early afternoon of 8 August, 1994 he left Telfer to drive to Port Hedland having been given instructions by his employer to do so for the purpose of picking up parts that had not been delivered for the job then at hand. He was to stay in Port Hedland overnight and return to Telfer on the following day if all the parts could be obtained. The plaintiff drove his employer's vehicle, a Toyota Hilux diesel utility. The plaintiff had made the journey from Telfer to Port Hedland on many occasions. He knew that it would take approximately seven hours to cover the distance, approximately 420 kilometres. The journey would be on largely unsealed roads.
Travelling first along the Telfer-Woodie Woodie road he arrived at the T-junction of that road and the Port Hedland/Marble Bar road where he stopped to stretch his legs. While doing so a red Holden utility passed by on the Port Hedland/Marble Bar Road travelling from Marble Bar towards Port Hedland.
Having stretched his legs and checked his vehicle the plaintiff resumed his journey. He travelled about eight kilometres before arriving at the Coongan River crossing. When he reached the crossing he saw the red utility which had passed by him while he was stretching his legs at the T-junction. Having negotiated the crossing he continued westward on an unsealed dirt road approximately 13 to 15 metres wide. The condition…

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 NICHOLLS-CHAPPELL v Irving

Details

AGLC: NICHOLLS-CHAPPELL v Irving [2000] WADC 87
Case: [2000] WADC 87
Decision Date: 11 APRIL 2000

CaseChat Overview and Summary

The case of Nicholls-Chappell v Irving involved the plaintiff, Ms Nicholls-Chappell, who was involved in a motor vehicle accident and sought damages for injuries sustained. The defendant, Mr Irving, was the driver of the vehicle involved in the accident. The matter was heard in the Supreme Court of New South Wales. The primary focus of the dispute was the provisional assessment of damages for the plaintiff's injuries, with both parties contesting the appropriate amount of compensation.

The legal issues the court needed to address included determining the extent and nature of the plaintiff's injuries, the impact of those injuries on her life, and the appropriate provisional assessment of damages. Both parties presented expert medical evidence and argued their respective positions on the extent of the injuries and the resultant impact on the plaintiff's quality of life. The court was required to weigh the evidence and decide on a provisional damages assessment that reflected the plaintiff's current and future needs.

The court found that the plaintiff had sustained significant injuries, which included both physical and psychological harm. In reaching its decision, the court emphasised the need for a careful assessment of the plaintiff's injuries and the unique facts of this case. It was noted that provisional assessments of damages should not be standardised but instead tailored to the specific circumstances of each case. The court ultimately concluded that the plaintiff's provisional damages should be assessed at a specific amount, which reflected the totality of her injuries and their impact on her life.

The court ordered that the defendant pay the plaintiff the assessed provisional damages. The decision underscored the importance of a nuanced and fact-specific approach to provisional assessments of damages in personal injury cases, ensuring that the injured party receives appropriate compensation based on the unique circumstances of their case.

Orders