Pidcock v Milosis

[2019] ACTSC 209

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Pidcock v Milosis

Citation:

[2019] ACTSC 209

Hearing Dates:

29–30 July 2019

DecisionDate:

9 August 2019

Before:

Murrell CJ

Decision:

Judgment entered for the plaintiff in the sum of $218,045.25.

Catchwords:

NEGLIGENCE – CAUSATION – Where the plaintiff was involved in motor vehicle accident – Where the plaintiff was asymptomatic prior to the accident – Where the plaintiff developed Achilles tendon symptoms after the accident – Whether the motor vehicle accident caused the symptoms

DAMAGES – PERSONAL INJURY – Assessment of damages – Non-economic loss – Future economic loss – Past out of pocket expenses – Future out of pocket expenses – Griffiths v Kerkemeyer damages

Legislation Cited:

Civil Law (Wrongs) Act 2002 (ACT) ss 45, 46, 99, 100

Cases Cited:

Cressy v Miloriad [2016] ACTSC 303

Griffiths v Kerkemeyer (1977) 139 CLR 161
Jennings v George Harcourt Management Pty Ltd [2018] ACTSC 33
Jennings v George Harcourt Management Pty Ltd [2018] ACTCA 50
Lumley v Sainsbury [2017] ACTSC 40
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Pangallo v Smith [2015] ACTSC 313
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208

Smith v Pangallo [2017] ACTCA 61

Parties:

Margaret Alison Pidcock (Plaintiff)

Maria Milosis (First Defendant)

Insurance Australia Group Ltd t/as NRMA Insurance (Second Defendant)

Representation:

Counsel

D Richards (Plaintiff)

B Wilson (Defendants)

Solicitors

Baker Deane & Nutt (Plaintiff)

Sparke Helmore (Defendants)

File Number:

SC 3 of 2018

Murrell CJ

1. At about 8:40 AM on 17 November 2014, Margaret Alison Pidcock (the plaintiff) was injured in a motor vehicle accident while she was driving to work.  The plaintiff’s vehicle was stationary at a stop sign when a motor vehicle driven by Maria Milosis (the first defendant) collided with the rear of the plaintiff’s vehicle.  The plaintiff claimed damages.

1. As the compulsory third-party insurer of the first defendant’s vehicle, the second defendant, Insurance Australia Group Ltd t/as NRMA Insurance, is liable to indemnify the plaintiff.

1. The defendants admitted breach of duty of care.  They accepted that the accident occasioned a temporary aggravation of the plaintiff’s pre-existing neck, shoulder, and back pain.  The contentious issues in the proceedings were:

(a)Whether the plaintiff’s left ankle injury was caused by the collision.

(b)The extent to which the plaintiff’s left ankle injury has restricted her activities given that, at the time of the accident, her activities were already restricted by the pre-existing condition.

The plaintiff

1. The defendants accepted that the plaintiff was a truthful witness, but suggested that she may have reconstructed some events and incorrectly recalled others.

1. As a witness, the plaintiff presented as both honest and reasonably reliable.  No doubt, her recall of the events surrounding the accident was not perfect, given that the accident occurred more than four years ago.  However, she was prepared to make appropriate concessions.  Her evidence about the impact of the accident on her activities was substantially corroborated by other witnesses.  The plaintiff also impressed as a stoic person who, as the defendants’ counsel submitted,…