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O'Neill v Rhodes

O'Neill v Rhodes

Case [2016] TASSC 17 30 March 2016

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[2016] TASSC 17

COURT: SUPREME COURT OF TASMANIA

CITATION: O'Neill v Rhodes [2016] TASSC 17

PARTIES:  O'NEILL, Craig Andrew
  v
  RHODES, Natasha

FILE NO:  415/2009
DELIVERED ON:  30 March 2016
HEARING DATES:  21 – 24, 27 July 2015
JUDGMENT OF:  Porter J

CATCHWORDS:

Limitation of Actions – Limitation of particular actions – Torts involving personal injuries – Actions for damages in respect of personal injuries to be brought within 3 years from date of discoverability – Plaintiff injured in April 2006 – Within a month of accident plaintiff spoke to a solicitor to ensure payment of medical expenses by statutory insurer – Solicitor wrote to statutory insurer making a claim for damages – No damages to be awarded for non-economic loss where the loss is not more than $4,000 with CPI adjustment from 2004 – Plaintiff did not know or ought to have known injury sufficiently significant to warrant bringing proceedings.
Allianz Australia Insurance Ltd v Mercer [2016] TASFC 2, applied.

Aust Dig Limitation of Acts [1024]

Damages – General principles – General and special damages – Costs of future medical treatment properly characterised as general damage – Failure to formally particularise such costs not to preclude an award particularly where the need for the services and the costing addressed in evidence tendered without objection.
Shearman v Folland [1950] 2 KB 43, followed.

Aust Dig Damages [1]

Damages – Particular awards of damages – Tasmania – 37 year old male – 47 at trial – Low back injury and minor soft tissue injuries to neck, shoulder and hand – Pre accident anxiety and vulnerability – Hyper-vigilant of symptoms – Loss of earning capacity where employed in a sedentary occupation – Non-economic loss of $60,000 – Total award of $583,923.
Aust Dig Damages [61]

REPRESENTATION:

Counsel:
             Plaintiff:  B R McTaggart SC and N Munting
             Defendant:  K E Read SC
Solicitors:
             Plaintiff:  Wallace Wilkinson & Webster
             Defendant:  Dobson Mitchell & Allport

Judgment Number: [2016] TASSC 17
Number of paragraphs: 147

Serial No 17/2016
File No 415/2009

CRAIG ANDREW O'NEILL v NATASHA RHODES

REASONS FOR JUDGMENT PORTER J

30 March 2016

Introduction

On Saturday 8 April 2006, the plaintiff, Craig O'Neill, was injured in a motor vehicle accident. On the afternoon of that day he was driving a utility and was stationary in the right hand turning lane of a busy road, preparing to make a turn. His vehicle was struck from behind by a vehicle driven by the defendant, Natasha Rhodes. As a result of the collision, the plaintiff injured his back, shoulders, neck, knees and left hand.
The plaintiff has sued the defendant for damages for personal injuries. The defendant has admitted that her driving was negligent, and that the plaintiff has suffered injury and damage. There is no allegation of contributory negligence. The defendant has, however, pleaded that the plaintiff is not entitled to any relief because the action was not brought within three years of the date of discoverability,…

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 O'Neill v Rhodes

Details

AGLC: O'Neill v Rhodes [2016] TASSC 17
Case: [2016] TASSC 17
Decision Date: 30 March 2016

CaseChat Overview and Summary

The matter of O'Neill v Rhodes was heard in the Supreme Court of Tasmania. The plaintiff, O'Neill, claimed damages for injuries sustained in a motor vehicle accident in April 2006. The defendant, Rhodes, denied liability, and the primary dispute was whether the claim was brought within the requisite limitation period, and if so, the quantum of damages, if any, to which O'Neill was entitled. O'Neill, who sustained a low back injury and minor soft tissue injuries, sought damages for both economic and non-economic losses. The legal issues before the court were whether O'Neill's claim was statute-barred and, if not, the extent of damages awarded.

The court determined that the plaintiff's action was not statute-barred as the non-economic loss did not exceed the $4,000 threshold from 2004, and O'Neill did not know or ought to have known that the injury was significant enough to warrant legal proceedings. The court referred to Allianz Australia Insurance Ltd v Mercer to support this finding. Furthermore, the court considered the costs of future medical treatment as general damages and held that the failure to formally particularise these costs did not preclude an award, especially when the need for services and the costing were addressed in the evidence tendered without objection, following Shearman v Folland. The court awarded O'Neill damages of $583,923, comprising $523,923 in general damages for future medical treatment, loss of earning capacity, and non-economic loss of $60,000.

In conclusion, the court dismissed the defendant's limitation defence and awarded O'Neill damages in the sum of $583,923, inclusive of costs.

Orders