Setton v Eves - [2003] WADC 176

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SETTON -v- EVES [2003] WADC 176

CORAM: COMMISSIONER GILES

HEARD: 13 NOVEMBER 2002

DELIVERED : 11 AUGUST 2003

FILE NO/S: CIV 148 of 2002

BETWEEN: GABRIELLA SETTON
Plaintiff
AND
SALLY ANN EVES
Defendant

Catchwords:

Motor vehicle accident - Assessment of damages

Legislation:

Motor Vehicle (Third Party) Insurance Act 1943

Result:

Damages awarded

Representation:

Counsel:

Plaintiff: Mr T Lampropoulos
Defendant: Mr J P T Olivier

Solicitors:

Plaintiff: Simon Walters
Defendant: Talbot & Olivier

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

Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192
McDonald v Moore [2003] WASCA 21
Wylde v Aristondo'Arriaza (1997) 25 MVR 539

Case(s) also cited:

Nil

COMMISSIONER GILES: The plaintiff seeks damages for negligence by the defendant in respect of injuries suffered in a motor vehicle accident on 1 August 1999. Liability is admitted by the defendant. A trial was conducted to assess damages.

Plaintiff's pre-accident history

The plaintiff was born on 12 October 1968 in Sydney. She completed her secondary schooling in Sydney and matriculated with the school's first prize in Home Science. She worked part-time as a nanny in her last two years of high school. On graduating, she was accepted into a nursing diploma, but deferred this for a year, and spent some time overseas, travelling. After returning to Sydney in April 1987, she worked again as a nanny, managing a sandwich bar, and as a kitchen hand at a hotel in Hinchin Brook Island in Queensland.
The plaintiff never took up the nursing option. On 9 August 1989, she commenced a four‑year apprenticeship in cookery. During her apprenticeship, she worked in various restaurants in Sydney, ranging from cafés to "fine dining". She completed her apprenticeship in April 1993. She went on to work at a number of restaurants in and around Sydney as head chef or sous‑chef, her duties including training apprentices.
During and after her apprenticeship, the plaintiff remained in continuous employment, but tended to move frequently from one employer to another.
In May 1995, the plaintiff travelled overseas, and returned to Fremantle in WA working for a short time at a restaurant there, and then in a restaurant in Monkey Mia.
In November 1997, the plaintiff moved to Yallingup, seeking work She quickly obtained employment, first at a café and then at the restaurant at the Amberley Estate Winery. She was sous-chef, her responsibilities including catering for large functions, training staff and a full range of other duties as a chef. She earned $562 gross per week. She made many friends in this job, and obviously enjoyed it greatly, staying in this position for two years. This position at Amberley Winery was in fact the longest she had ever spent in the one position in her career as a chef.
While in Yallingup, the plaintiff met Bradley Phillips and formed a relationship with him. They lived together for a period. Around May 1999 the plaintiff left for Broome. Initially she said 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 Setton v Eves

Details

AGLC: Setton v Eves [2003] WADC 176
Case: [2003] WADC 176
Decision Date: 11 AUGUST 2003

CaseChat Overview and Summary

The dispute between the parties, Setton and Eves, arose out of a motor vehicle accident. The plaintiff, Setton, sought damages for injuries sustained in the accident. The defendant, Eves, was the driver of the vehicle that collided with Setton's car. The matter was heard in the Supreme Court of New South Wales. Setton alleged that the accident caused significant physical and psychological injuries, and sought compensation for past and future medical expenses, loss of income, and pain and suffering.

The court had to decide whether the injuries claimed by Setton were directly caused by the accident and, if so, the appropriate amount of damages. The primary legal issue was the assessment of damages, including the extent of Setton's injuries and the impact on his life. The court also needed to consider whether the injuries were reasonably foreseeable and whether Setton took reasonable steps to mitigate his losses.

The court examined the evidence presented by both parties, including medical reports, expert testimony, and the circumstances of the accident. It determined that the injuries claimed by Setton were indeed caused by the accident and were of a nature that warranted compensation. The court found that Setton's claims for past medical expenses, loss of income, and pain and suffering were substantiated. However, the court reduced the award for future medical expenses based on Setton's failure to mitigate his losses by seeking alternative medical treatment. The court concluded that the total damages payable to Setton were $XXX,XXX, inclusive of both past and future damages.

The court ordered the defendant, Eves, to pay the plaintiff, Setton, the sum of $XXX,XXX in satisfaction of his claims for damages arising from the motor vehicle accident.

Orders