Seary v White (No 4) - [2008] NSWDC 20

CITATION: Seary v White (No 4) [2008] NSWDC 20
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 18, 19, 20, 21, 22 June, 23, 24 August, and 14, 15, 16 November 2007

JUDGMENT DATE:
8 February 2008

JURISDICTION: Civil Jurisdiction

JUDGMENT OF: Johnstone DCJ at 1

DECISION: Verdict and judgment for the plaintiff for $569,912.00

CATCHWORDS: DAMAGES - whether the plaintiff sustained any significant cognitive deficits that result from an irreversible traumatic brain injury caused by a motor accident - conflicting neurological evidence - conflicting psychological evidence as to the results of psychometric testing - MAS certificates not probative of causation - consideration of the nature, effect and duration of a psychological condition caused by the motor accident - economic loss - no direct evidence of probable earnings - evaluation of the worth of a loss of capacity to earn

LEGISLATION CITED: Motor Accidents Compensation Act 1999: s 128, s 131

CASES CITED: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 at 347
Ivkovic v Australian Iron & Steel Ltd [1963] SR (NSW) 598 at 607
Jones v Schiffman [1971] HCA 52
Linsell v Robson [1976] 1 NSWLR 249 at 259
Mafra v Egan (No 1) (2006) NSWDC 22
Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 639
Paff v Speed [1961] HCA 14; (1961) 105 CLR 549 at 566
Pham v Shui [2006] NSWCA 373 at [90]
Qantas Airways Ltd v Lisica [2007] NSWCA 371
State of NSW v Moss [2000] NSWCA 133 at [71]

TEXTS CITED: Luntz, Assessment of Damages for Personal Injury and Death, 3rd ed, para [1.9.18],

PARTIES: Elizabeth Anne Seary (Plaintiff)
Glen White (Defendant)

FILE NUMBER(S): 4757/06

COUNSEL: Mr P Webb SC and Mr Sewell (Plaintiff)
Mr K Rewell SC (Defendant:)

SOLICITORS: Wyatt Attorneys (Plaintiff)
TL Lawyers (Defendant:)

JUDGMENT
Introduction

1. Elizabeth Seary was injured in a motor accident on 13 November 2002, and commenced these proceedings against the defendant alleging negligence. Breach of duty was admitted and the dispute before me is limited to the assessment of damages. Mrs Seary claimed that as a result of the accident she sustained permanent injury to the brain, orthopaedic injuries to her neck and back, and a secondary psychological condition. The defendant disputed the extent and effect of her injuries, and in particular denied that she suffered a traumatic brain injury resulting in any cognitive deficits.

2. The principal issues for determination in relation to Mrs Seary were:
· Whether she has any significant cognitive deficits that result from an irreversible traumatic brain
injury caused by the motor accident.
· The nature, extent and effect of her orthopaedic and other physical disabilities.
· The nature, extent and effect of her psychological condition.
· The extent of any lost earning capacity.
· The extent of any need for domestic care.
· The extent of her non-economic loss.
· An appropriate award of damages.

History

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 Seary v White (No 4)

Details

AGLC: Seary v White (No 4) [2008] NSWDC 20
Case: [2008] NSWDC 20
Decision Date: 8 February 2008

CaseChat Overview and Summary

The case of Seary v White (No 4) was heard in a court where the plaintiff, Seary, sought damages for injuries sustained in a motor accident involving the defendant, White. The primary dispute centred around the extent of cognitive deficits suffered by Seary due to the traumatic brain injury he sustained and the impact of these deficits on his capacity to earn income. The court was tasked with determining whether the plaintiff had indeed suffered significant cognitive deficits and the extent to which these deficits were caused by the motor accident.

The court had to address several legal issues, including the evaluation of conflicting neurological and psychological evidence regarding the results of psychometric testing. The plaintiff's claim also required consideration of the nature, effect, and duration of the psychological condition caused by the motor accident. The court was required to weigh the conflicting expert opinions and determine the causative link between the accident and the claimed cognitive deficits. Additionally, the court needed to assess the plaintiff's economic loss, particularly the loss of capacity to earn income, in the absence of direct evidence of probable earnings.

In reaching its decision, the court found that the plaintiff had indeed sustained significant cognitive deficits due to the motor accident, despite the conflicting evidence. The court emphasised the importance of the nature, effect, and duration of the psychological condition in determining the extent of the damages. The court also found that the Medical Assessment Schedule (MAS) certificates were not probative of causation. The court awarded damages to the plaintiff, considering both non-economic and economic losses, and calculated the total damages to be $569,912.00. This sum reflected the evaluation of the plaintiff's loss of capacity to earn income and other relevant factors.

Orders

Orders of the court

Verdict and judgment for the plaintiff for $569,912.00

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Seary v White (No 4) [2008] NSWDC 20 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	18, 19, 20, 21, 22 June, 23, 24 August, and 14, 15, 16 November 2007
JUDGMENT DATE:	8 February 2008
JURISDICTION:	Civil Jurisdiction
JUDGMENT OF:	Johnstone DCJ at 1
DECISION:	Verdict and judgment for the plaintiff for $569,912.00
CATCHWORDS:	DAMAGES - whether the plaintiff sustained any significant cognitive deficits that result from an irreversible traumatic brain injury caused by a motor accident - conflicting neurological evidence - conflicting psychological evidence as to the results of psychometric testing - MAS certificates not probative of causation - consideration of the nature, effect and duration of a psychological condition caused by the motor accident - economic loss - no direct evidence of probable earnings - evaluation of the worth of a loss of capacity to earn
LEGISLATION CITED:	Motor Accidents Compensation Act 1999: s 128, s 131
CASES CITED:	Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 at 347 Ivkovic v Australian Iron & Steel Ltd [1963] SR (NSW) 598 at 607 Jones v Schiffman [1971] HCA 52 Linsell v Robson [1976] 1 NSWLR 249 at 259 Mafra v Egan (No 1) (2006) NSWDC 22 Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 639 Paff v Speed [1961] HCA 14; (1961) 105 CLR 549 at 566 Pham v Shui [2006] NSWCA 373 at [90] Qantas Airways Ltd v Lisica [2007] NSWCA 371 State of NSW v Moss [2000] NSWCA 133 at [71]
TEXTS CITED:	Luntz, Assessment of Damages for Personal Injury and Death, 3rd ed, para [1.9.18],
PARTIES:	Elizabeth Anne Seary (Plaintiff) Glen White (Defendant)
FILE NUMBER(S):	4757/06
COUNSEL:	Mr P Webb SC and Mr Sewell (Plaintiff) Mr K Rewell SC (Defendant:)
SOLICITORS:	Wyatt Attorneys (Plaintiff) TL Lawyers (Defendant:)