Ton v HAZELGRAVE - [1999] WADC 8

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
CIVIL

LOCATION: PERTH

CITATION: TON -v- HAZELGRAVE [1997] WADC 8

CORAM: O'BRIEN DCJ

HEARD: 14 & 15 JUNE 1999

DELIVERED : 26 JULY 1999

FILE NO/S: CIV 2677 of 1997

BETWEEN: QUAN DUNG TON
Plaintiff
AND
PHILLIP WILLIAM HAZELGRAVE
Defendant

Catchwords:

Damages - Motor vehicle accident - Soft tissue injury superimposed on pre-existing condition (scoliosis) - Plaintiff unfit for pre-accident occupation but fit for light duties - Future loss of earnings only for the time plaintiff unable to resume any employment - Turns on own facts.

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943 as amended

Law Reform (Miscellaneous Provisions) Act 1941 as amended

Result:

Damages Awarded

Representation:

Counsel:

Plaintiff: Mr T Heard
Defendant: Mr K N Allan

Solicitors:

Plaintiff: Bradford & Co
Defendant: K N Allan

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

Andjelic v Marsland (1996) 70 ALJR 435
Coleman v McDougall, unreported; DCt of WA; Library No 4413; 3 May 1995
Fabo v Craig, unreported; DCt of WA; Library No 5023; 2 August 1996
Grubor v Adornetto, unreported; DCt of WA; Library No 5030; 19 August 1996
Southgate v Waterford (1990) NSWLR 427
Van Gervan v Fenton (1991-1992) 175 ALR

Case(s) also cited:

Allan v Loadsman (1975) 2 NSWLR 7892
Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 2CLR 649
ASCIC v Westel Co-Operative Ltd A Tort Rep 81-159
Baird v Roberts (1977) 2 NSWLR 389
Bernard v State Government Insurance Commission, unreported; DCt of WA; Library No 4457; 7 June 1995
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Bowen v Tutte (1990) ATR 81-043
Brown v Rodrigues, unreported; FCt SCt of WA; Library No 970334A
Glendenhuys v Ah Lek Soo, unreported; FCt SCt of WA; Library No 990147A; 23 March 1999
Griffiths v Kerkemeyer (1977) 139 CLR 161
Hendrie v Rusli, unreported; DCt of WA; Library No D990147; 28 May 1999.
Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192
Linsell v Robson (1976) 1 NSWLR 249
Main v Titmus, unreported; DCt of WA; Library No 4576; 23 August 1995
Malaxos v van der Berg, unreported; DCt of WA; Library No 4681; 3 November 1995
Newman v Nugent (1992) 12 WAR 119
Purkess v Crittenden (1965) 114 CLR 164
Sharman v Evans (1977) 138 CLR 563
State Government Insurance Commission v Toomath per Rowland and Ipp JJ
Thomas v O'Shea (1989) A Tort Rep 80-251
Van Velzen v Wagener 10 SASR 549
Watts v Rake (1960) 108 CLR 158
Wylde v Aristondo 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1994

O'BRIEN DCJ: On 4 April 1997, the plaintiff was driving a motor vehicle along Main Street Balcatta when a car driven by the defendant crossed the lane and struck her vehicle head on. The defendant admitted liability and the plaintiff proceeded to trial on the issue of quantum of damages.
The plaintiff was born in Saigon, Vietnam, on 13 December 1950. She left school when she was 15 years of age…

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 Ton v HAZELGRAVE

Details

AGLC: Ton v HAZELGRAVE [1997] WADC 8
Case: [1999] WADC 8
Decision Date: 26 JULY 1999

CaseChat Overview and Summary

The case of Ton v Hazelgrave involved a plaintiff who sought damages following a motor vehicle accident that exacerbated a pre-existing condition of scoliosis. The plaintiff claimed for future loss of earnings due to the inability to continue in their previous occupation, which was deemed unsuitable post-accident, but was fit for light duties. The defendant contested the quantum of damages, arguing that the plaintiff should not be compensated beyond the period they were unable to return to any form of employment. This case came before the court to determine the appropriate compensation for the plaintiff's future loss of earnings, considering their fitness for light duties.

The court was required to address whether the plaintiff's future loss of earnings should be calculated based solely on the period they were unable to return to any employment, or if the period until they could return to light duties should also be considered. A critical issue was whether the plaintiff's pre-existing condition of scoliosis, which rendered them unfit for their pre-accident occupation, should affect the calculation of future loss of earnings. The court also needed to examine whether the plaintiff's fitness for light duties should be factored into the determination of damages, given their inability to return to their previous occupation.

In reaching its decision, the court held that the damages for future loss of earnings should be calculated based on the period the plaintiff was unable to resume any form of employment, rather than until they were fit for light duties. The court found that the plaintiff's pre-existing condition of scoliosis did not preclude them from being compensated for the period they were unfit for their previous occupation, but the fitness for light duties was not sufficient to warrant a reduction in the compensation period. The court emphasised that the facts of each case would determine the appropriate compensation for future loss of earnings, and in this instance, the plaintiff's inability to return to any employment was the key factor.

The court ordered that the damages for future loss of earnings should be calculated from the date of the accident until the plaintiff was able to return to any form of employment, without considering the period until they were fit for light duties. This decision recognised the impact of the accident on the plaintiff's ability to work and the limitations imposed by their pre-existing condition, while also acknowledging their fitness for light duties. The precise quantum of damages was to be determined based on the evidence presented regarding the plaintiff's earning capacity and the period of unemployment.

Orders