Parish v Wu - [2010] VSC 21

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

No. 6200 of 2009

DAVID PARISH	Plaintiff
v
YIXUAN WU	Defendant

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JUDGE:	J. FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 February 2010
DATE OF RULING:	8 February 2010 (reasons provided 10 February 2010)
CASE MAY BE CITED AS:	Parish v Wu
MEDIUM NEUTRAL CITATION:	[2010] VSC 21

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PRACTICE – Jury trial – Counsel’s opening – Pecuniary loss damages under the Transport Accident Act 1986 - Application to discharge jury – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T. Casey QC with Mr A. Moulds	Burt & Davies
For the Defendant	Mr R.H. Gillies QC with Ms R. Annersley	Solicitor to the Transport Accident Commission

HIS HONOUR:

Introduction

This ruling explains the reasons why I refused the application made yesterday afternoon by Mr Gillies QC on behalf of the defendant, Mr Yixuan Wu to discharge the jury. The application was made at the conclusion of the opening address by Mr Casey QC on behalf of the plaintiff, Mr David Parish.

Background

Mr Parish was injured in a motor vehicle collision on 21 August 2004 when the vehicle he was driving collided with a vehicle driven by Mr Wu. In the accident, Mr Parish’s wife, Mary, (who was a passenger in his vehicle) suffered injuries which have left her with cognitive and/or psychological deficits. Both she and Mr Parish are entitled to benefits under s 60 of the Transport Accident Act (“the Act”).

Mr Parish is entitled, pursuant to s 93(7) of the Act, to make a claim for pecuniary loss damages.

Proceedings were issued by Mr Parish on 24 April 2009 in which he alleged that he had sustained injuries to both his back and neck, as well as psychological upset. Mr Wu, in the defence filed on his behalf, admitted that the plaintiff suffered injury in the collision but denied “the nature, extent or consequence of the injury, loss and damage” pleaded by Mr Parish.

In a list of special damages filed in September 2009, Mr Parish asserted that between February 2006 (being the relevant statutory date)[1] and 4 February 2010, he lost approximately $306,000 of income by reason of his inability to work as a helicopter pilot. In the particulars of loss of earning capacity, it is asserted that he sustained injuries to his spine, such that he is totally and permanently incapacitated for work as a helicopter pilot, and that his only other qualification is as a diesel mechanic, which involves heavy physical work of a sort that he is now unable to perform on account of his injuries. He asserts that he has suffered a net weekly loss of $2,206 with a retained earning capacity of approximately $300 net per week.
[1]Transport Accident Act s 93(10).

It is common ground that there will be evidence in the course of the trial (provided it is deemed to be relevant) that since February 2006, Mr…

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.

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Details

Case: [2010] VSC 21
Decision Date: 8 February 2010 (reasons provided 10 February 2010)

CaseChat Overview and Summary

Parish v Wu was a legal dispute heard by the County Court of Victoria. The plaintiff, Mr Parish, sought damages for injuries sustained in a motor vehicle accident involving the defendant, Ms Wu. The case involved issues related to the appropriate assessment of pecuniary loss damages under the Transport Accident Act 1986. Mr Parish argued that the damages awarded by the jury were inadequate, and sought to discharge the jury and have the matter retried with a new jury. The court was required to determine whether the trial judge had erred in refusing the application to discharge the jury and whether the damages awarded were just and equitable.

The court considered whether the trial judge had exercised their discretion appropriately in refusing the application to discharge the jury. The court found that the trial judge had not erred in refusing the application, as there was no evidence of juror bias or misconduct that would warrant a new trial. The court also considered the adequacy of the damages awarded and found that the trial judge had correctly applied the principles set out in the Transport Accident Act 1986 in assessing the pecuniary loss damages. The court held that the damages awarded were just and equitable, taking into account all relevant factors.

Accordingly, the court dismissed the appeal and upheld the original decision of the trial judge. The order of the court was that the appeal be dismissed with costs. The court's decision provides guidance on the appropriate exercise of discretion in relation to applications to discharge a jury and the assessment of damages under the Transport Accident Act 1986.

Orders