Pastuch v Transport Accident Commission

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil: Application)

PASTUCH & ORS v TRANSPORT ACCIDENT COMMISSION

[2023] SADC 150

Judgment of his Honour Judge Slattery  

9 November 2023

DAMAGES - ASSESSMENT OF DAMAGES IN TORT - PERSONAL INJURY - INCOME LOSS AND LOSS OF EARNING CAPACITY - GENERALLY

On 6 November 2016 the first applicant, Mr Pastuch, was the driver of a road train motor vehicle travelling in a generally west/north west direction on the Eyre Highway outside of Penong in western South Australia.

At the same time and place, a Mr Brenton Kansy- Grosser was driving a road train vehicle on the same highway in a generally east south/east direction.

The vehicle driven by Mr Kansy-Grosser collided with the vehicle driven by Mr Pastuch. Mr Kansy-Grosser died as a result of the collision. The respondent, the Transport Accident Commission has accepted liability for the collision.

As a result of the collision, Mr Pastuch suffered a severe fracture of the upper right arm, right shoulder injuries, a fractured clavicle, and exacerbation of a pre-existing lower back injury and a severe psychiatric injury of Post Traumatic Stress Disorder and depressive symptoms.

The first applicant Mr Pastuch has not been able to return to his pre-accident employment as a road train driver since the collision. He claims against the respondent for damages for past and future economic loss, pain and suffering, medical expenses and other damages.

The second applicant Ms Samantha Lewis, the wife of Mr Pastuch, claims for loss of consortium of Mr Pastuch following the injuries suffered by him.

Before the trial the parties prepared a list of issues for the determination of the trial Judge which included a record of some matters agreed between the parties as follows:-

1. Liability is admitted by the respondent as to the occurrence of the accident but there is a 25 % reduction of liability on account of the first applicant’s failure to wear a seatbelt: Civil Liability Act s 49;

2.      The parties have agreed that the appropriate ISV Item Number of 12 based on the GEPIC Assessment of Dr Hundertmark and the parties agree that the ISV Item Number of 25 applies to the injury which for an accident occurring in the 2017 financial year gives a figure for general damages in the amount of $17,850;

3.      The parties agree that in the event the Court is minded to award damages based on commercial rates for services provided, the appropriate is $51 per hour;

4.      The parties agree that in the event the Court is minded to award damages for gratuitous care, the appropriate rate is in accordance with Regulation 19 of the Civil Liability Regulations, at a rate of $25 per hour (indexed);

5.      The parties agreed that the Court would be required to make findings and, if necessary, assessments in relation to past economic loss, past superannuation, future economic loss, future superannuation, Wilson v McLeay damages, gratuitous services, future care, past special damages, future medical expenses, interest and the loss of…