Thackray v To - [2009] WADC 148

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: THACKRAY -v- TO [2009] WADC 148

CORAM: BOWDEN DCJ

HEARD: 3-4 AUGUST 2009

DELIVERED : 18 SEPTEMBER 2009

FILE NO/S: CIV 1028 of 2008

BETWEEN: ANDREW THACKRAY
Plaintiff
AND
VAN THIEU TO
Defendant

Catchwords:

Damages - Personal injury - Motor vehicle collision - Quantum only - Turns on own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Judgment in favour of the plaintiff for $155,749.30

Representation:

Counsel:

Plaintiff: Mr K J Bradford
Defendant: Mr P R Momber

Solicitors:

Plaintiff: Bradford & Co
Defendant: Peter Momber

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

De Blank v Stemberger [2000] WASCA 358
Hendrie v Rusli [2000] WASCA 249
Medlin v State Government Insurance Commission [1995] HCA 5; (1994 ‑ 1995) 182 CLR 1
Redken Laboratories (Aust) Pty Ltd v Docker & Anor [2000] NSWCA 100
Thrackray v Hardcastle, unreported; DCt of WA; Library No D990106; 28 April 1999

BOWDEN DCJ: The plaintiff sues for damages arising out of a motor vehicle accident occurring on 14 January 2003 ("the accident"). Liability for negligence has been admitted and the trial proceeded on the question of quantum of damages.
The onus is on the plaintiff to establish his claim on the balance of probabilities.

A brief statement of the plaintiff's contentions

At the date of the accident the plaintiff suffered from a pre‑existing back injury.
He says the accident aggravated this condition and caused additional injuries and claims it was not until approximately May 2007 that he returned to his pre‑accident level of pain.
He contends medication will be required for the rest of his life and he permanently lost part of his capacity to perform domestic chores, suffers sexual dysfunction and an increased disability to his back. He seeks damages for pain and suffering, past gratuitous services and interest thereon together with the cost of future gratuitous services, past medical expenses and damages for future pharmaceutical expenses.
In addition he contends he was unable to perform, to his level of satisfaction, his duties as general manager of GRD Kirfield Limited (Kirfield) and shortly after the accident obtained lower paid employment. Accordingly, he seeks damages for economic loss from that date until 30 June 2007, (after which his income has reached pre‑accident levels), loss of past superannuation and interest thereon.

A brief statement of the defendant's contention

The defendant admits her negligence caused the accident.
She says there is no objective pathology of any "new injury" or aggravation of the pre‑existing injury and says the accident was so small in scale that, if injury was caused, it was unlikely to be significant.
The defendant claims the effect of this accident upon the plaintiff's overall condition was minor.

Evidence presented at trial

At the trial I heard oral evidence from the plaintiff, Dr Dean, Mr Slinger and Professor Stokes. I received, by consent, a booklet of medical reports (Exhibit 1), and financial documents (Exhibit 2). Two surveillance videos (Exhibit 3) and an additional…

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 Thackray v To

Details

AGLC: Thackray v To [2009] WADC 148
Case: [2009] WADC 148
Decision Date: 18 SEPTEMBER 2009

CaseChat Overview and Summary

The matter before the court involved a dispute between Thackray and To, concerning the quantum of damages to be awarded to Thackray for personal injuries sustained in a motor vehicle collision. The case was heard in the Supreme Court of New South Wales. The primary issue before the court was the appropriate assessment of damages in this specific case. This involved determining the extent of Thackray's injuries, their impact on his life, and the corresponding compensation.

The court was tasked with evaluating the evidence presented regarding the severity and impact of Thackray's injuries, as well as the medical and expert reports submitted. The legal principles guiding the court's assessment included the need to ensure that the damages awarded were fair and commensurate with the injuries sustained, taking into account both the physical and psychological impacts. The court had to consider the unique circumstances of this case, ensuring that the damages reflected the individual nature of Thackray's injuries and their specific consequences.

After carefully considering the evidence and submissions, the court determined that the damages awarded should reflect the specific circumstances of Thackray's case. The court assessed the medical evidence, expert opinions, and the overall impact of the injuries on Thackray's life, concluding that a particular sum was appropriate. This decision recognised the unique nature of the injuries and the resultant impact on Thackray. The court's reasoning underscored the necessity for a tailored approach to damages in personal injury cases, emphasising the importance of individual circumstances in determining the appropriate compensation.

Orders