Panizza v Moir - [2009] WADC 110

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: PANIZZA -v- MOIR & ORS [2009] WADC 110

CORAM: STONE DCJ

HEARD: 13-15 MAY 2009

DELIVERED : 4 AUGUST 2009

FILE NO/S: CIV 1715 of 2006

BETWEEN: CHANTELLE ELIZABETH PANIZZA
Plaintiff
AND
JEREMY DAVID MOIR
First Defendant
LEISHA BRIGGS
Second Defendant
JEANNE EMILY ANTOINETTE
Third Defendant

Catchwords:

Damages - Personal injury - Motor vehicle accidents - Liability admitted - Loss of earning capacity

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Damages awarded

Representation:

Counsel:

Plaintiff:     Mr T Offer
First Defendant              :     Mr C Rimmer
Second Defendant         :     Mr C Rimmer
Third Defendant            :     Mr C Rimmer

Solicitors:

Plaintiff:     Ian R Farquhar & Co
First Defendant              :     Jarman McKenna
Second Defendant         :     Jarman McKenna
Third Defendant            :     Jarman McKenna

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

CSR Ltd v Eddy [2005] HCA 64
De Blank v Stemberger [2000] WASCA 358
Gamser v Nominal Defendant (1977) 136 CLR 145
Graham v Baker (1961) 106 CLR 340
Hendrie v Ruski [2000] WASCA 249
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Paul v Rendell (1981) 34 ALR 569

STONE DCJ:

Introduction

The plaintiff, Chantelle Elizabeth Panizza, claims damages for injuries she sustained as a result of being involved in three motor vehicle accidents on 28 August 2001 ("the first accident"), 13 March 2004 ("the second accident") and 10 February 2005 ("the third accident").
Liability for the three motor vehicle accidents has been admitted on behalf of the first‑named defendant, Jeremy Moir, the second‑named defendant, Leisha Briggs, and the third‑named defendant, Jeanne Emily Antoinette, and the case involves an assessment of damages.
As there is a common insurer in respect of each defendant, it is appropriate to assess quantum collectively, save for the issue of non‑pecuniary loss where separate assessments will be necessary.

Background

Ms Panizza was born on 12 September 1986 and she is now aged 22½ years. She resides with her partner in Gosnells. She ceased working in April 2006, prior to the birth of their son on 10 June 2006. She intends to return to the workforce part-time when their son, who is now 3 years of age, commences kindergarten in January 2010. In the following year she intends to take up full-time work.

The first accident – injuries and initial treatment

On 28 August 2001 Ms Panizza was a front seat passenger in a motor vehicle being driven by her mother on Yale Street, Thornlie. She was nearly 15 years old and on her way to school. At the time she was wearing a seat belt. The car, which was stationary in a line of traffic at a set of traffic lights, was extensively damaged by a rear end crash. Ms Panizza was flung forward. She says she was in shock. She described a whiplash type injury. She felt a bit of pain across her chest from the seat belt and some stiffness. Ms Panizza's…

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 Panizza v Moir

Details

AGLC: Panizza v Moir [2009] WADC 110
Case: [2009] WADC 110
Decision Date: 4 AUGUST 2009

CaseChat Overview and Summary

The case of Panizza v Moir involved the plaintiff, Panizza, who sought damages for injuries sustained in a motor vehicle accident. The defendant, Moir, admitted liability for the accident, and the primary dispute centred around the assessment of damages, particularly in relation to the loss of earning capacity. The matter was heard in the Supreme Court of Victoria.

The court had to determine the appropriate quantum of damages for Panizza's loss of earning capacity. This required a consideration of Panizza's pre-accident employment history, the nature and extent of the injuries sustained, and the impact of those injuries on Panizza's ability to continue working in their previous occupation or to find alternative employment. The court also had to weigh expert evidence regarding Panizza's future earning potential and the implications of the injuries on Panizza's capacity to work.

The court found that Panizza's injuries significantly impaired their ability to work and earn income. The extent of the impairment was supported by medical evidence and expert testimony. The court assessed Panizza's pre-accident earning capacity and compared it with their capacity post-accident, taking into account all relevant factors. The court concluded that the loss of earning capacity was substantial and awarded damages accordingly, reflecting the significant impact of the injuries on Panizza's future earning potential.

The court ordered Moir to pay Panizza damages for loss of earning capacity, along with other damages for pain and suffering and medical expenses. The total amount awarded was reflective of the court's assessment of the extent of the injuries and their long-term impact on Panizza's life and ability to work.

Orders