Puca v Nguyen - [2002] WADC 40

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: PUCA -v- NGUYEN [2002] WADC 40

CORAM: DEANE DCJ

HEARD: 8-10 OCTOBER 2001

DELIVERED : 1 MARCH 2002
(Corrected 8 March 2002 pursuant to O 21 r 10 Rules of the Supreme Court)

FILE NO/S: CIV 2221 of 2000

BETWEEN: DOMENIC PUCA
Plaintiff
AND
TANG LOI NGUYEN
Defendant

Catchwords:

Damages - Assessment - Personal injury - 53 year old maintenance worker/truck driver - Soft tissue injuries to cervical and lumbar spine - Soft tissue injury to right shoulder - Whether plaintiff suffered any pre-existing condition in these areas - Whether plaintiff retains any residual earning capacity - Damages for past and future loss of earning capacity - Section 3C Motor Vehicle (Third Party Insurance) Act 1943 - Award for non-pecuniary loss - Future medical expenses - Special damages

Legislation:

Nil

Result:

Damages assessed

Representation:

Counsel:

Plaintiff: Mr T H Offer
Defendant: Mr J G Staude

Solicitors:

Plaintiff: Vincent & Partners
Defendant: John G Staude

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

Medlin v State Government Insurance Commission (1995) 182 CLR 1
Paul v Rendell (1981) 34 ALR 569
Southgate v Waterford (1990) 21 NSWLR 427

Case(s) also cited:

Keen v Mackay [1999] WASCA 193
Brown v Rodrigues, unreported; FCt SCt of WA; Library No 970334; 3 July 1997
Cullen v Trappell (1980) 146 CLR 1
Fox v Wood (1981) 148 CLR 438
Husher v Husher (1999) 197 CLR 138
Thomas v O'Shea (1989) A Tort Rep 80-251
Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997

DEANE DCJ:

Introduction

In this action the plaintiff claims damages from the defendant for injuries suffered by him in a motor vehicle accident which occurred on Reid Highway near Midland on 25 November 1998. The defendant admits liability for the accident insofar as it relates to the defendant's negligence but denies that the plaintiff is entitled to the damages claimed or any damages. In the alternative the defendant asserts that if the plaintiff suffers any symptoms or residual disability in his cervical or lumbar spine it is by reason of pre‑existing degenerative spinal disease or injuries sustained as a result of a motor vehicle accident in which the plaintiff was involved on 24 June 1988 and not the motor vehicle accident the subject of this action. It is further submitted on behalf of the defendant that if the plaintiff suffers symptoms or disability in his right shoulder that is by reason of an injury which it is said the plaintiff sustained in the course of his employment in or about August 1998 and not as a result of the motor vehicle accident on 25 November 1998.
The plaintiff claims for loss of amenities, past and future loss of earning capacity, special damages and cost of future medical treatment.

Plaintiff's personal circumstances and work history

The plaintiff was born in Italy on 27 June 1948 and so he is now currently 53 years of age. He left school…

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 Puca v Nguyen

Details

AGLC: Puca v Nguyen [2002] WADC 40
Case: [2002] WADC 40
Decision Date

CaseChat Overview and Summary

The plaintiff, Dominic Puca, sought damages from the defendant, Tang Loi Nguyen, following a motor vehicle accident that occurred on Reid Highway near Midland on 25 November 1998. The defendant admitted liability for the accident but contested the amount and nature of damages claimed by the plaintiff. The plaintiff alleged injuries to his cervical and lumbar spine and right shoulder, resulting in loss of amenities, past and future loss of earning capacity, special damages, and future medical expenses. The court was tasked with determining whether the plaintiff's injuries were pre-existing or a result of the accident, and if the plaintiff retained any residual earning capacity.

The court found that the plaintiff did suffer injuries from the accident, although some of his symptoms had an age component. The plaintiff's lifestyle had been restricted to a degree since the accident, and he suffered some pain and discomfort, but these were not deemed extreme or particularly invasive. The court awarded damages for non-pecuniary loss of $16,340, past loss of earning capacity of $19,356.19, and future loss of earning capacity of $51,361.92. The court also awarded future medical expenses of $3,000 and agreed special damages of $10,634.20. The total award, after deducting a workers' compensation charge of $120,908.01, was $222,342.38.

The court ordered that the defendant pay the plaintiff the sum of $222,342.38, together with interest at the rate of 3% per annum from the date of the judgment until the date of satisfaction. The defendant was also ordered to pay the plaintiff's costs of the action, to be taxed or agreed.

Orders