Sarkisjan v Wanless - [2001] WADC 76

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SARKISJAN -v- WANLESS [2001] WADC 76

CORAM: YEATS DCJ

HEARD: 5-9 FEBRUARY 2001

DELIVERED : 28 MARCH 2001

FILE NO/S: CIV 4420 of 1999

BETWEEN: HOVSEP SARKISJAN
Plaintiff
AND
BRENDAN LEA WANLESS
Defendant

Catchwords:

Damages - Personal injuries - Soft tissue injury to the cervical spine - Rear end collision - Speed of defendant's vehicle - Liability and quantum - Plaintiff 41‑year-old Macedonian - General damages $50,000 - Total award $363,906

Legislation:

Nil

Result:

Damages awarded

Representation:

Counsel:

Plaintiff: Mr G Droppert
Defendant: Mr J R Brooksby

Solicitors:

Plaintiff: Leonard Cohen
Defendant: Greenland Brooksby

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

Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1
Bresatz v Przibilla (1962) 108 CLR 541
Browne v Dunn (1894) R (HL) 67
De Blank v Stemberger [2000] WASCA 358
Hendrie v Rusli [2000] WASCA 249
Thomas v O'Shea (1989) A Tort Rep 80-215
Wylde v'Arriaza, unreported; FCt SCt of WA; Library No 970349; 23 July 1997

Case(s) also cited:

Van Velzen v Wagener (1975) 10 SASR 549

YEATS DCJ: The plaintiff claims damages for injuries suffered in a motor vehicle accident on 14 August 1999. He was the driver of a Suzuki four cylinder vehicle waiting to enter Ocean Reef Road from a slip road off Wanneroo Road when he was hit from behind by a Hyundai driven by the defendant.
Liability is not in issue and the matter proceeds as an assessment of damages.
The plaintiff contends that he suffered a significant injury to his neck in the course of the motor vehicle accident and is no longer able to work at his previous employment as a diesel mechanic. The defendant contends that the motor vehicle accident was so minor that it could not have caused the problems in the plaintiff's neck and suggests that problems in his cervical spine are the result of degenerative changes. The defendant suggests that the plaintiff has grossly exaggerated his claim and suggests that he was not injured as he alleges in the course of the motor vehicle accident.
There are a number of issues in contest between the parties including the speed of the defendant's car at the time it impacted with the rear of the plaintiff's vehicle, whether the pathology in relation to the cervical spine is accident related and whether the symptoms in the plaintiff's left wrist and forearm are accident related.

History

The plaintiff is 41 years of age. He was born on 25 May 1959 in Macedonia. The plaintiff was educated in Macedonia and trained to be a mechanic in a four year course which he finished in 1980.
He worked in Macedonia until 1995 when he migrated to New Zealand. After nearly four years there he migrated to Western Australia in October of 1998. He had worked as a diesel mechanic in New Zealand and sought work of that nature in Western Australia, particularly work as a diesel mechanic in…

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 Sarkisjan v Wanless

Details

AGLC: Sarkisjan v Wanless [2001] WADC 76
Case: [2001] WADC 76
Decision Date

CaseChat Overview and Summary

The District Court of Western Australia heard a case between Hovsep Sarkisjan, the plaintiff, and Brendan Lea Wanless, the defendant, in relation to a motor vehicle accident that occurred on 14 August 1999. The plaintiff, who was driving a Suzuki vehicle, was rear-ended by the defendant's Hyundai on Wanneroo Road as he attempted to turn left into Ocean Reef Road. The plaintiff claimed damages for injuries sustained in the accident, while the defendant contested the severity of the injuries and their causation. The court found that the speed of the defendant's car at the time of the collision was between 15 and 20 kilometres per hour and that the plaintiff suffered a cervical whiplash injury and a disc protrusion at the C4/5 level as a result of the accident. The plaintiff was deemed totally incapacitated from continuing his work as a diesel mechanic and required retraining for light or sedentary employment. The court awarded the plaintiff damages for past and future loss of earnings, past and future loss of superannuation, past and future medical expenses, interest, and general damages for non-pecuniary loss, resulting in a total award of $363,906.00.

Orders