Stewart v Jacobsen No. Scgrg-99-1099 - [2000] SASC 198

STEWART v JACOBSEN
[2000] SASC 198

Full Court : Doyle CJ, Debelle and Nyland JJ

DOYLE CJ: I agree with the orders proposed by Nyland J, and with her reasons for the making of those orders. There is nothing that I wish to add to those reasons.
DEBELLE J: I agree with the substance of the reasons of Nyland J.
NYLAND J: In this matter, the plaintiff suffered injuries as a result of a motor vehicle accident which occurred on 31 May 1994. There was no dispute as to liability and the trial proceeded by way of assessment of damages only.
On 10 June 1999, a District Court judge assessed the plaintiff’s damages in the total sum of $85,970. The plaintiff has appealed against the amount included in that award with respect to future economic loss and non-economic loss. She says those damages are inadequate. There is also a cross appeal by the defendant with respect to the amount included in the award for past and future gratuitous services. On 31 August 1999, the District Court judge made orders as to costs and interest. As a result of the delay in instituting proceedings and the failure to comply with the 90 day Rule, the judge reduced the amounts recoverable by the plaintiff with respect to interest and costs. He further ordered an inquiry under s 42(3) of the District Court Act and DCR 101.06(1). The plaintiff has also appealed against those orders. The defendant has lodged a cross-appeal with respect to the question of costs.
On 25 February 2000 an order was made by a Supreme Court judge that Michael William Speck and Michael W Speck & Co (Southern Law Chambers) Pty Ltd (the plaintiff’s solicitors) each be joined as an appellant in the appeal. The judge ordered that the inquiry be stayed pending the outcome of the appeal.
On the hearing of the appeal, Mr Crocker appeared for the plaintiff. He informed the court that he only wished to make submissions with respect to the awards for future economic loss, non-economic loss and gratuitous services.
Mr Frayne appeared on behalf of the plaintiff’s solicitors and sought leave to make submissions with respect to the remaining grounds of appeal, although no separate notice of appeal had been filed on behalf of the plaintiff’s solicitors. Upon Mr Crocker indicating that plaintiff maintained all grounds of appeal, leave was given to Mr Frayne to make submissions as to the orders for costs, interest and the inquiry. For completeness, I mention that Mr Walsh QC, with Mr Ward, appeared for the defendant.

Non-economic loss:

At the trial the judge heard evidence from the plaintiff, her husband and her mother, Mrs Hopwood. Evidence was also given by Dr Roe, a general practitioner, Dr Callum, a physician, Dr Schembri and Dr Kutlaca, both of whom were psychiatrists, and Dr Lipert an orthopaedic surgeon. Each of these witnesses also provided reports which were admitted in evidence. Reports were also admitted from Dr Saies, a surgeon, and…

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 Stewart v Jacobsen No. Scgrg-99-1099

Details

AGLC: Stewart v Jacobsen No. Scgrg-99-1099 [2000] SASC 198
Case: [2000] SASC 198
Decision Date: 29 June 2000

CaseChat Overview and Summary

The case of Stewart v Jacobsen involved an appeal against the amount of damages awarded to the plaintiff for injuries sustained in a motor vehicle accident. The appeal focused on the awards for future economic loss, non-economic loss, and gratuitous services. The plaintiff argued that the awards were inadequate, while the defendant cross-appealed regarding the amount for past and future gratuitous services. The District Court judge had assessed damages at $85,970, reduced the interest and costs due to delay, and ordered an inquiry under s 42(3) of the District Court Act and DCR 101.06(1). The Supreme Court was tasked with reviewing these decisions.

The court found that the award for non-economic loss was modest but not manifestly inadequate. The plaintiff suffered significant and long-term injuries that had a considerable impact on her daily life, but the court was not convinced that the award was so inadequate as to warrant interference. The court also found that the trial judge had given insufficient weight to the severity of the plaintiff's injuries and her diminished capacity to work, and therefore allowed the appeal with respect to future economic loss, substituting an award of $25,000. Regarding gratuitous services, the court held that the trial judge had correctly applied the relevant statutory provisions and dismissed the appeal on this issue.

Concerning the interest and costs, the court upheld the judge's decision to reduce the pre-judgment interest period due to inexcusable and unreasonable delay in prosecuting the claim, which was attributed to the plaintiff's solicitors. The court also upheld the judge's decision to reduce the plaintiff's recoverable costs by 10% for failing to comply with the 90-day Rule. The court found that the order for an inquiry into the conduct of the plaintiff's solicitors was appropriate given the unexplained delay in the proceedings.

In conclusion, the court set aside the original order and substituted a new order assessing the plaintiff's damages at $110,970. The appeal against the original judgment was dismissed, as was the cross-appeal. The appeal and cross-appeal against the judgment and orders regarding interest and costs were also dismissed.

Orders