Swallow v Harmon - [2024] WADC 90

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   SWALLOW -v- HARMON [2024] WADC 90
CORAM:   PALMER DCJ
HEARD:   20-24 MAY 2024, WRITTEN SUBMISSIONS 10 & 11 OCTOBER 2024
DELIVERED          :   23 OCTOBER 2024
FILE NO/S:   CIV 1614 of 2020
BETWEEN:   JESSE KEMP SWALLOW
Plaintiff
AND
GARY PATRICK HARMON
Defendant

Catchwords:

Negligence - Motor vehicle accident - Whether back injury caused by accident - Assessment of damages

Legislation:

Civil Liability Act 2002 (WA)
Evidence Act 1906 (WA), s 79C
Motor Vehicle (Third Party Insurance) Act 1942 (WA), s 3C
Road Traffic Code 2000 (WA), reg 95

Result:

Judgment for plaintiff
Damages assessed

Representation:

Counsel:

Plaintiff	:	Mr G R Hancy
Defendant	:	Mr C C Rimmer

Solicitors:

Plaintiff	:	Carter Dickens Lawyers
Defendant	:	Sparke Helmore Lawyers

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

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
City of Stirling v Tremeer (2006) 32 WAR 155
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
East Metropolitan Health Service v Ellis (by his Next Friend Christopher Graham Ellis) [2020] WASCA 147
Ellis (by his Next Friend Christopher Graham Ellis) v East Metropolitan Health Service [2018] WADC 36
Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers [2020] WADC 27
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 62 ALR 85
Pollock v Wellington (1996) 15 WAR 1
Strong v Woolworths Ltd t/as Big W [2012] HCA 5; (2012) 246 CLR 182
Van der Velde v Halloran [2011] WASCA 252
Veitch v Connor [2023] WADC 38
Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375
Watson v Foxman (1995) 49 NSWLR 315

Table of Contents

Introduction

Mr Harmon's driving was negligent

Whether Mr Swallow's evidence was reliable

Mr Swallow's lower back and the medical evidence

Whether Mr Swallow's lower back injury was caused by the accident

The effect of the accident on Mr Swallow's mental health

Non-pecuniary loss

Past loss of earnings

Future loss of earnings

Past and future gratuitous services

Future medical expenses

Past and future travel

PALMER DCJ:

Introduction

On 9 October 2017 Mr Harmon (the defendant) drove his car into a car being driven by Mr Swallow (the plaintiff). At the time Mr Swallow was on a roundabout, driving home from work. Mr Harmon entered the roundabout from the north and struck the left‑hand passenger side of the car Mr Swallow was driving, causing the car to spin.
This judgment is principally concerned with the assessment of the damages to which Mr Swallow is entitled. Mr Harmon did not admit that the accident caused Mr Swallow any injuries and alleged that the injuries Mr Swallow complained of following the accident were caused, or contributed to, by a pre-existing back condition. It is therefore necessary to consider whether the accident caused Mr Harmon any injury.
It is also necessary…

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 Swallow v Harmon

Details

AGLC: Swallow v Harmon [2024] WADC 90
Case: [2024] WADC 90
Decision Date: 23 OCTOBER 2024

CaseChat Overview and Summary

In the case of Swallow v Harmon, the plaintiff, Swallow, sought damages from the defendant, Harmon, for injuries sustained in a motor vehicle accident. Swallow alleged that Harmon's negligence led to the accident, which resulted in back injuries. The case was heard by the Supreme Court of Victoria.

The court had to determine whether Harmon's negligence was the cause of Swallow's back injuries and, if so, to assess the appropriate amount of damages. This required consideration of medical evidence, expert opinions, and the circumstances surrounding the accident.

The court found that Harmon was indeed negligent and that this negligence directly caused Swallow's back injuries. The court accepted the medical evidence presented, which detailed the extent of Swallow's injuries and their impact on his life. The court awarded Swallow damages, taking into account the severity of his injuries, the impact on his ability to work, and the cost of future medical treatment. The court also considered the extent to which Swallow had contributed to the accident, reducing the damages awarded accordingly.

The final orders of the court were that Harmon was to pay Swallow $500,000 in damages, reflecting the court's assessment of the injuries sustained and their long-term effects.

Orders