SAARE v Jenkin - [2002] WADC 36

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SAARE -v- JENKIN [2002] WADC 36

CORAM: GROVES DCJ

HEARD: 1-2 FEBRUARY 2001

DELIVERED : 1 MARCH 2002

FILE NO/S: CIV 588 of 1999

BETWEEN: ERIC OLAF SAARE
Plaintiff
AND
ROSS ALAN JENKIN
Defendant

Catchwords:

Damages - Assessment - Personal injuries - Cyclist struck by motor vehicle - Fractured left leg at knee joint - Onset of osteoarthritis in left knee - Impact of deteriorating condition on future earning capacity - 45 year old engineer

Legislation:

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

Result:

General damages $23,300.00
Loss of future earning capacity $489,125.00
Future medical treatment $5,000.00

Representation:

Counsel:

Plaintiff: Mr K J Bradford
Defendant: Ms B A Mangan

Solicitors:

Plaintiff: Bradford & Co
Defendant: Phillips Fox

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

Bresatz v Przibilla (1962) 108 CLR 541
Geldenhuys v Soo, unreported; FCt SCt of WA; Library No 990147; 23 March 1999
Hendrie v Rusli [2001] WASCA 249
Husher v Husher (1999) 197 CLR 138
Kember v Thackrah [2000] WASCA 198
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
McGilvray v Amaca Pty Ltd [2001] WASC 345
Southgate v Waterford (1990) 21 NSWLR 427
Spargo v Haden Engineering Pty Ltd (1993) 60 SASR 39
Thomas v O'Shea (1989) A Tort Rep 80-251
Wylde v 'Arriaza, unreported FCt SCt of WA; Library No 970359; 23 July 1997
Yammine v Kalwy (1979) 2 NSWLR 151
Zappara v Jones, unreported; FCt SCt of WA; Library No 970264; 22 May 1997

Case(s) also cited:

Capponi v Commonwealth of Australia (1970) 44 ALJR 226

GROVES DCJ: The plaintiff claims damages from the defendant for injuries suffered in a motor vehicle accident on 27 May 1998. Liability is admitted and the matter proceeded by way of an assessment of damages.

The accident, injury and effects

At approximately 6.30 am on 27 May 1998 the plaintiff was riding his Trek 9800 mountain bike to work. He was travelling south on West Coast Drive at Sorrento where St Helier Drive intersects West Coast Drive. Traffic on West Coast Drive has right of way through the intersection. As the plaintiff was proceeding through the intersection a Toyota Land Cruiser being driven by the defendant travelling west on St Helier Drive proceeded into the intersection and collided with the plaintiff. The roo bar on the Land Cruiser struck the plaintiff on the left knee. The plaintiff was thrown up onto the bonnet of the Land Cruiser and fell to the side and onto the roadway.
The plaintiff was conveyed by ambulance to the Joondalup Health Campus where he came under the care of Mr Anthony Geddes, an orthopaedic surgeon. He was diagnosed with a comminuted fracture of his left lateral tibial plateau. He was admitted to surgery on the same day for open reduction and internal fixation of the fracture in conjunction with bone grafting of the tibial plateau. The bone graft was taken from the hip. He also sustained…

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 SAARE v Jenkin

Details

AGLC: SAARE v Jenkin [2002] WADC 36
Case: [2002] WADC 36
Decision Date: 1 MARCH 2002

CaseChat Overview and Summary

The case before the court involved a dispute between the plaintiff, Saare, and the defendant, Jenkin. Saare, a 45-year-old engineer, was injured in a road accident when he was struck by Jenkin’s motor vehicle while cycling. The collision resulted in a fracture to Saare's left leg at the knee joint and subsequent onset of osteoarthritis in that knee. Saare sought damages for the injuries he sustained, which impacted his future earning capacity. The court was required to assess the extent of the damages and determine an appropriate compensation amount for Saare.

The legal issues that arose in this case centred on the quantification of damages for personal injury. The court had to consider the nature and extent of the physical injuries, the impact of the injuries on Saare’s future earning capacity, and the appropriate compensation for the deterioration of his left knee condition. Given Saare's age and profession, the court needed to evaluate how the injuries would affect his ability to work and earn income in the future. Additionally, the court had to consider whether the osteoarthritis was a direct result of the accident or whether it would have occurred regardless.

In determining the damages, the court carefully examined the evidence provided regarding the injuries and their long-term effects. The court considered medical evidence on the severity of the fracture, the progression of osteoarthritis, and the impact of the injuries on Saare's professional capabilities. The court assessed Saare's age and career stage, weighing these factors against the potential for future earnings. After a thorough evaluation, the court found that the injuries sustained by Saare had a significant impact on his future earning capacity, and awarded him damages accordingly.

The court ordered that the defendant pay the plaintiff compensation for the injuries sustained, reflecting the impact on his future earning capacity and the progression of osteoarthritis in his left knee. The precise amount of the award was not specified in the text, but it was based on the findings and considerations outlined in the judgment.

Orders