Perry v Pese

[2018] ACTSC 205

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Perry v Pese

Citation:

[2018] ACTSC 205

Hearing Dates:

31 July 2018 – 1 August 2018

DecisionDate:

1 August 2018

Before:

Elkaim J

Decision:

(i)    Judgment for the plaintiff in the sum of $157,884.

(ii)     The defendants are to pay the plaintiff’s costs of the proceedings.

Catchwords:

TORTS – NEGLIGENCE – Motor vehicle collision – personal injury – nature and extent of injury – calculation of damages

Legislation Cited:

Civil Law (Wrongs) Act 2002 (ACT)

Parties:

Matthew Perry (Plaintiff)

Pupi Pese (First Defendant)

Insurance Australia Limited trading as NRMA Insurance (ABN 11 000 016 722) (Second Defendant)

Representation:

Counsel

Mr A Muller (Plaintiff)

Mr D Crowe (First and Second Defendant)

Solicitors

United Legal (Plaintiff)

Hall & Wilcox (First and Second Defendant)

File Number:

SC 67 of 2018

ELKAIM J:

1. The plaintiff was born in 1972. He was injured in a motor vehicle accident on 31 March 2017. He blames the first defendant for the accident. The second defendant, the first defendant’s insurer, agrees and has admitted breach of duty of care.

1. The plaintiff, by this action, has sought damages from the defendants arising from his injuries. He has claimed damages under the following heads: general damages, past and future medical expenses and past and future domestic assistance. Interest is claimed where applicable.

1. The defendants accept that the plaintiff was injured but have challenged the extent of the injuries and in particular their translation into compensatory loss.

1. The Civil Law (Wrongs) Act 2002 (ACT) is relevant to the assessment of damages.

1. In brief compass, the accident occurred when the first defendant failed to give way to the plaintiff at a roundabout. There was a collision between their respective vehicles.

1. The plaintiff is now almost 46 years of age. He was 44 when the accident occurred. The plaintiff has a significant history of medical illness. He has endured three bouts of cancer. In 2009, he was treated for prostate cancer. In 2014, he was diagnosed with cancer in his left shoulder and later in the same year a rectal tumour was identified. He has had surgery and radiation therapy to address the cancers. He is now in remission.

1. The plaintiff was not working when the accident occurred. He was receiving a Disability Support Pension. The pension was based on his incapacity flowing from the cancer in his left shoulder. The plaintiff has had two previous motor car accidents. He suffered whiplash injuries in each accident but they appear to have been of minor severity and were not the subject of any claim.

1. The plaintiff has a good work history, primarily involving fairly heavy labouring work or forklift driving. The details of his various employments can be found in the chronology (Exhibit F).

1. There is no claim for economic loss. The plaintiff intended to return to work after his cancer treatment. However, he commenced proceedings against his general practitioner and Canberra Hospital arising from this treatment. This claim, which resolved earlier this week…