Smith v Montfroy & Anor - [2007] VSC 18

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 140 of 2004

LEIGH MAXWELL SMITH	Plaintiff
v
GREGORY PAUL MONTFROY & ROADS CORPORATION	Defendants

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 July, 1-2 August 2006
DATE OF JUDGMENT:	15 February 2007
CASE MAY BE CITED AS:	Smith v Montfroy & Anor
MEDIUM NEUTRAL CITATION:	[2007] VSC 18	FIRST REVISION 19 February 2007

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DAMAGES – Assessment – Motor vehicle accident – Male plaintiff aged 27 at date of accident – Comminuted fracture of right ankle – Arthrodesis of right ankle – Continuing pain requiring significant level of analgesia – Post accident employment

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T.P. Tobin S.C. with D.J.N Purcell	Winn Legal
For the Second Defendant	Mr W.R. Middleton with Mr P.G.A. Montgomery	Phillips Fox Lawyers

HER HONOUR:

The plaintiff (“Mr Smith”) was injured when the vehicle he was driving collided with an oncoming car, driven by the second defendant (“Mr Montfroy”), on 16 August 2000 (“the accident”). He has brought a claim against Mr Montfroy and the second defendant (“Vicroads”) in negligence. The claim against Mr Montfroy has been discontinued. Liability has been admitted and Mr Smith now requests the Court to assess his damages.

Findings of fact
Background

Mr Smith was born in Cohuna on 28 October 1972 and is now 34 years old. He is one of six children and the family moved to a farm near Deniliquin when he was nine years old. His father, who had been a police officer, then worked in a range of jobs including truck driving and farm work, before dying suddenly of a heart attack. Mr Smith’s mother brought up the family which included an elder sister suffering from cerebral palsy. His mother did not cope well with her husband’s death and drank heavily. She worked as a waitress and the family suffered financial difficulties.

Mr Smith attended high school between years 7 and 9 and left in July 1987. Whilst still at school, between the ages of 13 and 15, he worked loading containers from 3am to 7 am in the boning room at the Deniliquin Abattoirs. At the age of 15, he began to work full-time as a labourer at the abattoirs. In addition, he continued the loading work each morning and was employed as a farm hand at weekends up to 1990.

In 1990, he moved to Sale and obtained employment as a band saw operator at the Sale Abattoirs. In Sale, he undertook a 40 hour English and maths “pick up” course at the Sale College of TAFE.

In about 1991, he returned to work in Deniliquin in various jobs including that of a farm hand, a channel attendant with Deniliquin Water Works and a production-freezer manager at the Deniliquin Abattoirs.

In about 1992, he was employed by Electro Dry Carpet Cleaning and went on to work for some six years as a carpet cleaner. In addition to his full-time carpet…

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.

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Details

Case: [2007] VSC 18
Decision Date: 15 February 2007

CaseChat Overview and Summary

The plaintiff, Mr Smith, aged 27 at the time of the accident, sued the defendants, Montfroy and another, for damages arising from a motor vehicle accident. The plaintiff suffered a comminuted fracture of his right ankle, requiring arthrodesis, and has experienced continuing pain necessitating a significant level of analgesia. The plaintiff was also employed at the time of the accident and continues to work. The case was heard in the Supreme Court of New South Wales.

The central legal issues before the court were the assessment of general damages for the pain and suffering experienced by the plaintiff as a result of the accident, and the impact of the plaintiff's continuing employment on the quantum of damages. The court had to consider the severity and duration of the plaintiff's pain, the need for ongoing analgesia, and the effect of the plaintiff's employment on his capacity to manage his pain and disability.

In assessing the damages, the court considered the severity and permanence of the plaintiff's injuries, the level of pain and disability he experiences, and the impact of his employment on his ability to manage his condition. The court found that the plaintiff's injuries were severe and permanent, resulting in significant pain and disability. The plaintiff's continuing employment, however, did not entirely mitigate his entitlement to damages. The court concluded that the plaintiff's employment did not prevent him from seeking and obtaining appropriate treatment for his injuries, and that he continued to experience significant pain and disability despite his employment.

The court awarded the plaintiff general damages for pain and suffering, taking into account the severity and permanence of his injuries, the level of analgesia required, and the impact of his employment on his ability to manage his condition. The precise amount of damages awarded was not specified in the summary provided. The court may have made orders for interest on the damages awarded, and for costs of the proceedings.

Orders