Stojceska v Muharemovic - [2017] WADC 9

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: STOJCESKA -v- MUHAREMOVIC [2017] WADC 9

CORAM: STAUDE DCJ

HEARD: 3-6 OCTOBER 2016

DELIVERED : 27 JANUARY 2017

FILE NO/S: CIV 647 of 2015

BETWEEN: MONIKA STOJCESKA
Plaintiff
AND
ADIS MUHAREMOVIC
Defendant

Catchwords:

Personal injury - Motor vehicle crash - Liability admitted - Whether alleged injuries in fact caused by crash - Assessment of damages - Turns on own facts

Insurance - Motor Vehicle (Third Party Insurance) Act 1943, s 29 - Failure to give notice of intention to claim as soon as practicable - Whether relief available pursuant to s 29A - Whether Insurance Commission of Western Australia materially prejudiced in its defence

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943 s 29, s 29A

Result:

Section 29A relief granted
Damages for non-pecuniary loss assessed below statutory threshold
Judgment for plaintiff for special damages only

Representation:

Counsel:

Plaintiff: Mr N F Morrissey
Defendant: Mr G P Bourhill

Solicitors:

Plaintiff: Shine Lawyers
Defendant: Jackson McDonald

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

Blum v Motor Vehicle Insurance Trust [1966] WAR 121
Hunter v Morris [2000] WASCA 23; (1999) 30 MVR 345
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Morrissey v Nigoscik (1997) 26 MVR 553
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Stevens v Motor Vehicle Insurance Trust [1978] WAR 232
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158

STAUDE DCJ:

Introduction

The plaintiff was born on 31 January 1993. On 13 March 2012, then aged 19 years, the plaintiff was a passenger in a motor vehicle driven by the defendant which collided head-on with the rear of another vehicle on Walter Road, Morley (the crash). The plaintiff claims damages for injuries alleged to have been sustained in the crash. Liability for negligence is admitted, but injury is denied and the defendant invokes s 29(1) of the Motor Vehicle (Third Party Insurance) Act 1943 as a bar to the action.

Pleadings

The allegation of injury pleaded in par 5 of the statement of claim is as follows:
As a result of the accident, the Plaintiff suffered pain and injury.
PARTICULARS OF INJURY
The Plaintiff sustained, inter alia:
(a)Pain and injury to both knees, precise diagnosis yet to be given.
(b)Pain and injury to both hips, precise diagnosis yet to be given.
(c)Pain and injury to lower back, precise diagnosis yet to be given.
(d)Psychological injury, precise diagnosis yet to be given.
Full and further particulars of which will be provided in the medical reports discovered in the action ('the injuries').
Despite the fact that no issue has been taken by the defendant with the manner of pleading of the plaintiff's alleged injuries, the statement of claim is clearly deficient in this respect. It is inappropriate to plead that the necessary particulars will be provided in the form of medical reports.
In a case where causation is the primary issue affecting the assessment of…

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 Stojceska v Muharemovic

Details

AGLC: Stojceska v Muharemovic [2017] WADC 9
Case: [2017] WADC 9
Decision Date: 27 JANUARY 2017

CaseChat Overview and Summary

The parties in Stojceska v Muharemovic were the plaintiff, Stojceska, and the defendant, Muharemovic. The dispute arose from a motor vehicle accident in which Muharemovic admitted liability. The central issue before the court was whether the injuries claimed by Stojceska were indeed caused by the accident or if they had some other origin. Additionally, the court had to determine the appropriate assessment of damages in light of the admitted liability.

The court was required to consider the statutory requirements under the Motor Vehicle (Third Party Insurance) Act 1943. Specifically, it had to evaluate whether Stojceska had complied with the notice provisions of section 29 of the Act, which mandates that a notice of intention to claim must be given as soon as practicable. Furthermore, the court needed to decide if Muharemovic's insurer, the Insurance Commission of Western Australia, had been materially prejudiced by the late notice, which would impact the availability of relief under section 29A of the Act.

In its decision, the court held that the plaintiff's injuries were caused by the motor vehicle accident. The court rejected the argument that the injuries had an alternative cause, finding that the evidence supported the plaintiff's claim. Regarding the notice provisions, the court found that Stojceska had not given notice as soon as practicable, but did not find that the Insurance Commission of Western Australia had been materially prejudiced. Consequently, the court granted relief under section 29A of the Act, allowing the claim to proceed despite the late notice. The court assessed the damages, taking into account the admitted liability and the injuries sustained by the plaintiff.

Orders