Southern v Townsend - [2000] WADC 233

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SOUTHERN -v- TOWNSEND [2000] WADC 233

CORAM: COMMISSIONER REYNOLDS

HEARD: 15, 16, 17, 18, 19 MAY 2000

DELIVERED : 22 SEPTEMBER 2000

FILE NO/S: CIV 2469 of 1998

BETWEEN: GARY ALAN SOUTHERN
Plaintiff
AND
TRENTON STUART MARTIN TOWNSEND
Defendant

Catchwords:

Damages - Pedestrian - Liability - Contributory negligence - Foot run over by car - Complex regional pain syndrome - Psychiatric condition - Depression

Legislation:

The Motor Vehicle (Third Party Insurance) Act 1943

Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947

Result:

Plaintiff awarded $290,000

Representation:

Counsel:

Plaintiff: Mr T Lampropoulos
Defendant: Mr G P Bourhill

Solicitors:

Plaintiff: Simon Walters
Defendant: McAuliffe Schwikkard

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

Commissioner of Railways v Ruprecht (1979) 142 CLR 563
Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192
Malec v Hutton Proprietary Limited (1990) 168 CLR 638
Patallo v Thomas (1984) 1 MVR 359, 360
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 491
Stocks v Baldwin (1996) 24 MVR 415
Walker v McCall (1994) 20 MVR 146

Case(s) also cited:

Nil

COMMISSIONER REYNOLDS:

Introduction

The plaintiff was born on 28 September 1953 and is 46 years of age. On 29 May 1997 he was a pedestrian walking in the yard of Wanneroo Auto's when he was struck by a car driven by the defendant ("the accident"). The plaintiff alleged that the accident was caused by the defendant's negligent manner of driving. The defendant has admitted that he was negligent but has alleged that the negligence of the plaintiff contributed to the accident.
The plaintiff has alleged that he sustained soft tissue injuries to the cervical, thoracic and lumbar spine, left leg and left foot which have produced tenderness and limitation of neck, back and left leg movements, secondary reflex sympathetic dystrophy, postural antaglia, oedema of the left leg, headaches, discomfort, sleep disturbance and psychological symptoms including depression and anxiety. The plaintiff claims damages including damages for loss of enjoyment of life and loss of amenities and past and future economic loss resulting from his accident related injuries and symptoms. The defendant denies that the plaintiff sustained any compensible injury and damage.
Given that the defendant has admitted negligence, the only liability issues are whether the plaintiff is guilty of contributory negligence, and if so, to what extent. The other issues to be determined concern what physical and psychological/psychiatric injuries, if any, have been suffered by the plaintiff as a result of the accident and the appropriate quantum of damages if any.

The plaintiff's pre-accident history

The plaintiff was born in Subiaco and as already mentioned is 46 years of age. He is divorced and has three dependent children aged 17, 16 and 14 years. He completed his primary education at Rivervale and Belmont primary schools. He then attended Belmont High School and left school part way through third year. On leaving school he commenced work in the catering industry as a cook. He…

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 Southern v Townsend

Details

AGLC: Southern v Townsend [2000] WADC 233
Case: [2000] WADC 233
Decision Date

CaseChat Overview and Summary

In the case of Southern v Townsend, the District Court of Western Australia was tasked with determining the extent of damages to be awarded to the plaintiff, Gary Southern, following an accident in which he was struck by a car driven by the defendant, Trenton Townsend. The key issues revolved around the extent of the plaintiff's injuries, the degree of contributory negligence on his part, and the appropriate quantum of damages. The court found that the defendant was negligent in reversing his car into the plaintiff without observing him, while the plaintiff was partially negligent for not looking to his right before stepping into the path of the car. The court apportioned liability at 60% to the plaintiff and 40% to the defendant. The plaintiff sustained physical injuries, including complex regional pain syndrome, and psychological injuries, such as major depression. The court assessed the plaintiff's past and future economic losses, loss of superannuation, gratuitous services, medical expenses, and general damages. After considering contributory negligence, the court awarded the plaintiff damages totaling $290,000.

Orders