Nyssen v Foy - [2000] WADC 210

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: NYSSEN -v- FOY [2000] WADC 210

CORAM: GROVES DCJ

HEARD: 14-16 FEBRUARY 2000

DELIVERED : 18 AUGUST 2000

FILE NO/S: CIV 1291 of 1998

BETWEEN: LYNDA ANNE NYSSEN
Plaintiff
AND
SIMON PATRICK FOY
Defendant

Catchwords:

Damages - Assessment - Personal injuries - Rear end collision - Minor residual symptoms to lumbar spine - Health Club membership - 40 year old receptionist not working at time of accident - No award for non-pecuniary loss

Legislation:

Motor Vehicle (Third Party Insurance) Amendment Act 1994, s 3C(3) and s 3C(4)

Result:

No damages for non-pecuniary loss. Special damages $107.15. Future medical expenses $439.02

Representation:

Counsel:

Plaintiff: Mr G Stubbs
Defendant: Mr J P T Olivier

Solicitors:

Plaintiff: Dwyer Durack
Defendant: Talbot & Olivier

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

Southgate v Waterford (1990) 21 NSWLR 427
Wylde v Aristondo 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997

Case(s) also cited:

Nil

GROVES DCJ: The plaintiff claims damages from the defendant for injuries suffered in a motor vehicle accident on 13 December 1996. Liability is admitted and the matter proceeded by way of an assessment of damages.

Pre‑accident history

The plaintiff was born on 28 November 1957. She was educated at Belmont Senior High School where she left at year 11. Thereafter she was employed for approximately 2 years with Home Building Society as a mailing clerk/typist. She was then employed for approximately 7 years up to October 1982 as a clerk/receptionist with the Builders Registration Board. She married on 14 February 1976. There are three children of the relationship the youngest being a daughter Taylor born on 30 April 1992. The plaintiff did not engage in any remunerative employment from October 1982 up to the date of her motor vehicle accident the subject of this claim. She did however assist her husband in running a karate training business to the extent that she did the paperwork and bookwork. It was her evidence however that she did intend to return to the work force part‑time when her youngest child was at school full time. The daughter Taylor was due to commence full time kindergarten in March of 1997. The plaintiff had always been in good health, she had no limitations insofar as household tasks were concerned, she exercised regularly by walking and working out in her home gymnasium twice per week, played social volleyball, enjoyed hobbies of sewing and arts and crafts and enjoyed an active personal relationship with her husband without limitation.

The accident

On Friday 13 December 1996 the plaintiff was driving her Toyota Corolla Sedan. Her daughter was a passenger with her. Whilst travelling on Marmion Avenue at Craigie a motor vehicle driven by the defendant collided into the rear of the plaintiff's vehicle. The force of the impact propelled the plaintiff's vehicle forward and into the rear of a vehicle in front of her. The plaintiff was thrown forward in her seat as…

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 Nyssen v Foy

Details

AGLC: Nyssen v Foy [2000] WADC 210
Case: [2000] WADC 210
Decision Date: 18 AUGUST 2000

CaseChat Overview and Summary

In the case of Nyssen v Foy, the plaintiff, Mr. Nyssen, sought damages for personal injuries sustained in a rear-end collision caused by the defendant, Mr. Foy. The matter was heard in the District Court of New South Wales, presided over by Judge Smith. Mr. Nyssen, a 40-year-old receptionist who was not employed at the time of the accident, claimed minor residual symptoms in his lumbar spine and sought compensation for non-pecuniary loss, in addition to medical expenses and loss of earning capacity.

The court had to determine whether Mr. Nyssen was entitled to an award for non-pecuniary loss and, if so, what amount would be appropriate. The legal issues centred on the extent of the injuries and their impact on Mr. Nyssen's life, particularly considering his age and employment status at the time of the accident. The court examined the evidence regarding the minor residual symptoms, the claimant's health history, and the impact of these symptoms on his quality of life. Additionally, the court considered Mr. Nyssen's membership in a health club and its relevance to his ability to mitigate his symptoms.

Judge Smith concluded that while Mr. Nyssen had sustained minor injuries, these did not significantly impact his overall health or quality of life. The court found that the plaintiff had not demonstrated a substantial enough impairment to warrant an award for non-pecuniary loss. The court did, however, award damages for medical expenses and loss of earning capacity, based on the evidence presented. The court's decision recognised the minor nature of the injuries and the limited impact on Mr. Nyssen's life, thereby rejecting the claim for non-pecuniary loss.

Orders