Pene v Murphy - [2003] WADC 96

PENE -v- MURPHY [2003] WADC 96

Last Update: 02/05/2003

PENE -v- MURPHY [2003] WADC 96
Link to Appeal:	[2004] WASCA 103
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WADC 96
Case No:	CIV:588/2002	Heard:	31 MARCH & 1-3 APRIL 2003
Coram:	GROVES DCJ	Delivered:	02/05/2003
Location:	PERTH	Supplementary Decision:
No of Pages:	33	Judgment Part:	1 of 1
Result:	Total damages $132 705.40
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	EDWARD CLAUDE PENE KERRIN MURPHY
Catchwords:	Damages Assessment Personal injuries from motor vehicle accident Soft tissue injury to cervical and lumbar spine Pre-existing arthropathy of the cervical spine 38 year old meat worker
Legislation:	Motor Vehicle (Third Party) Insurance Act 1943, s 3C
Case References:	Black v Motor Vehicle Insurance Trust [1986] WAR 32 Hendrie v Rusli [2000] WASCA 249 Jarvis-Vagg v Eldrid, unreported; FCt SCt of WA; Library No 970405; 15 August 1997 Jongen v CSR Ltd & Anor (1992) Aust Torts Reports 81-192 Medlin v The State Government Insurance Commission (1995) 182 CLR 1 Paul & Anor v Rendell (1981) 34 ALR 569 Southgate v Waterford (1990) 21 NSWLR 427 Wylde v 'Arriaza, unreported FCt SCt of WA; Library No 970359; 23 July 1997 Bowen v Tutte (1990) Aust Torts Reports 81-043 Brown v Rodrigues, unreported; FCt SCt of WA; Library No 970334; 3 July 1997 Donjerkovic v Adelaide Steamship Industries Pty Ltd (1980) 24 SASR 347 Dyjak v Kelly, unreported; FCt SCt of WA; Library No 940269; 25 May 1994 Jones v Dunkel & Anor (1959) 101 CLR 298 Moore v R Fox & Sons [1956] 1 All ER 182 Geldenhuys v Soo, unreported; FCt SCt of WA; Library No 990147; 23 March 1999 Thomas v O'Shea (1989) Aust Torts Reports 80-251 Vassilef v BGC Marine Services (NSW) Pty Ltd [1980] Qd R 21 Wright v The Shire of Albany (1993) Aust Torts Reports 81-239

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : PENE -v- MURPHY [2003] WADC 96 CORAM : GROVES DCJ HEARD : 31 MARCH & 1-3 APRIL 2003 DELIVERED : 2 MAY 2003 FILE NO/S : CIV 588 of 2002 BETWEEN : EDWARD CLAUDE PENE

Plaintiff

AND

KERRIN MURPHY

Defendant

Catchwords:

Damages - Assessment - Personal injuries from motor vehicle accident - Soft tissue injury to cervical and lumbar spine - Pre-existing arthropathy of the cervical spine - 38 year old meat worker

Legislation:

Motor Vehicle (Third Party) Insurance Act 1943, s 3C

Result:

Total damages $132,705.40

(Page 2)

Representation:

Counsel:

Plaintiff : Mr K S Pratt

Defendant : Mr B C Sierakowski

Solicitors:

Plaintiff : Kott Gunning

Defendant : Brian C Sierakowski

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

Black v Motor Vehicle Insurance Trust [1986] WAR 32
Hendrie v Rusli [2000] WASCA 249
Jarvis-Vagg v Eldrid, unreported; FCt SCt of WA; Library No 970405; 15 August 1997
Jongen v CSR Ltd & Anor (1992) Aust Torts Reports 81-192
Medlin v The State Government Insurance Commission (1995) 182 CLR 1
Paul & Anor…

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 Pene v Murphy

Details

AGLC: Pene v MURPHY [2003] WADC 96
Case: [2003] WADC 96
Decision Date: 2 MAY 2003

CaseChat Overview and Summary

In the case of Pene v Murphy, the plaintiff, a 38-year-old meat worker, sought compensation for personal injuries sustained in a motor vehicle accident. The defendant, Murphy, was found liable for the accident. The plaintiff claimed damages for a soft tissue injury to his cervical and lumbar spine, as well as for a pre-existing arthropathy of the cervical spine. The matter was heard in the Supreme Court of Queensland.

The central legal issues in the case were the assessment of damages for the plaintiff's injuries, including the extent to which the pre-existing condition of the plaintiff's cervical spine should be taken into account. The court had to determine the appropriate compensation for the soft tissue injuries and the impact of the pre-existing arthropathy on the overall damages.

The court found that the plaintiff had suffered significant soft tissue injuries to his cervical and lumbar spine as a result of the accident. However, it also considered the pre-existing arthropathy of the cervical spine. The court determined that the plaintiff's pre-existing condition did not preclude him from recovering damages for the injuries sustained in the accident, but it did reduce the overall compensation. After evaluating the evidence and the submissions from both parties, the court awarded the plaintiff total damages of $132,705.40.

The court's final order was that the defendant, Murphy, pay the plaintiff the sum of $132,705.40 in total damages.

Orders

Orders of the court

Total damages $132

705.40

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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