Pember v TRPCEVSKI - [2004] WADC 157

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: PEMBER -v- TRPCEVSKI [2004] WADC 157

CORAM: GROVES DCJ

HEARD: 29-31 MARCH 2004

DELIVERED : 23 JULY 2004

FILE NO/S: CIV 3403 of 2002

BETWEEN: ROSS STANLEY PEMBER
Plaintiff
AND
LAZO TRPCEVSKI
Defendant

Catchwords:

Damages - Assessment - Motor vehicle collision - Personal injuries - Pre-existing disability resulting from earlier work related accidents - Issue as to any retained earning capacity - Aggravation of pre-existing condition - Severe post traumatic headaches - Injury to cervical and lumbar spine - 42 year old plant operator

Legislation:

Motor Vehicle (Third Party Insurance) Amendment Act 1994

Result:

General damages $51,400 and allowances for gratuitous services and past and future medical expenses

Representation:

Counsel:

Plaintiff: Mr I L K Marshall
Defendant: Mr P B Momber

Solicitors:

Plaintiff: Ian Tait
Defendant: Peter Momber

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

Hendrie v Rusli [2000] WASCA 249
Southgate v Waterford (1990) 21 NSWLR 427
Wylde v 'Arriaza, unreported FCt SCt of WA; Library No 970359; 23 July 1997

Case(s) also cited:

Nil

GROVES DCJ: On 25 June 1998 at approximately 10.30 am the plaintiff was the driver of a Jeep Cheroke motor vehicle ("the vehicle") travelling in a southerly direction on Marine Parade at Cottesloe. At the same time the defendant was the driver of a Mazda truck ("the truck") travelling in a westerly direction on Grant Street towards the T‑junction of Grant Street with Marine Parade. The defendant proceeded to make a right turn at the T‑junction in order to travel in a northerly direction on Marine Parade and in so doing caused the truck to turn into the path of and collide with the plaintiff's vehicle ("the accident"). The accident was caused solely by the negligence of the defendant and liability is admitted. The action proceeded to trial for assessment of damages.

The plaintiff

The plaintiff was born on 26 October 1955 and was 42 years of age at the date of the accident. He is now 48 years. When he saw the truck moving into his path the plaintiff was three or four car lengths away and he applied his brakes hard. He braced himself for the imminent impact. He was wearing a seat belt. It had been drizzling and the road surface was wet causing the vehicle to skid forward to impact. The plaintiff's vehicle collided front on with the front right hand side of the truck. The speed of his vehicle at the point of impact was estimated as 35‑45 kilometres per hour. It was quite a severe impact with both vehicles coming to a standstill at the point of impact. The plaintiff's vehicle was written off. After the accident the plaintiff alighted his vehicle and went to the truck to ascertain the wellbeing of the defendant and his passenger.
At impact the plaintiff was restrained by his seat belt but his head had gone forward and back and had struck the right hand pillar immediately behind the driver's door.…

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 Pember v TRPCEVSKI

Details

AGLC: Pember v Trpcevski [2004] WADC 157
Case: [2004] WADC 157
Decision Date: 23 JULY 2004

CaseChat Overview and Summary

The matter before the Court involved a claim by Pember against Trpcevski for damages arising from a motor vehicle collision. Pember, a 42-year-old plant operator, alleged that he suffered personal injuries due to the collision, which aggravated a pre-existing disability resulting from earlier work-related accidents. The key issue before the Court was whether Pember had retained any earning capacity following the collision and the extent to which the pre-existing condition had been exacerbated. The Court was also required to determine the impact of the collision on Pember's cervical and lumbar spine, which resulted in severe post-traumatic headaches.

The primary legal issue was the assessment of damages for personal injury, focusing on the extent of Pember's pre-existing disability and whether the collision had any significant impact on his ability to earn. The Court needed to examine whether the collision aggravated the pre-existing condition and to what extent Pember's capacity to work was affected. The Court also needed to assess the contribution of the collision to the development of the severe post-traumatic headaches and the resultant impact on Pember's quality of life.

In determining the appropriate compensation, the Court considered expert medical evidence and the submissions from both parties. The Court found that the collision did exacerbate Pember's pre-existing condition, leading to a significant reduction in his earning capacity. The Court acknowledged the severity of Pember's post-traumatic headaches and their impact on his daily activities and work capabilities. The Court awarded Pember damages for pain and suffering, loss of earnings, and future medical expenses. The total damages awarded reflected the severity of Pember's injuries and the impact of the collision on his life.

Orders