TSILIVIS -v- GORDON [2007] WADC 111

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WADC 111
Case No:	CIV:1309/2006	Heard:	5-6 JUNE 2007
Coram:	COMMISSIONER STEVENSON	Delivered:	3/07/07
Location:	PERTH
No of pages:	50	Judgment Part:	1 of 1
Result:	Damages assessed in the sum of $20,000
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Parties:	IRENE TSILIVIS ANDREW MAURICE GORDON
Catchwords:	Damages Negligence Motor vehicle accident Personal injuries Assessment of damages Mild soft tissue strain injury to cervical spine Headaches Preexisting rheumatoid arthritis Preexisting recurrent headaches 45yearold working woman
Legislation:	Motor Vehicle (Third Party Insurance) Amendment Act 1994, s 3C
Case References:	Den Hoedt & Anor v Barwick [2006] WASCA 196 Southgate v Waterford (1990) 21 NSWLR 427

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : TSILIVIS -v- GORDON [2007] WADC 111 CORAM : COMMISSIONER STEVENSON HEARD : 5-6 JUNE 2007 DELIVERED : 3 JULY 2007 FILE NO/S : CIV 1309 of 2006 BETWEEN : IRENE TSILIVIS

Plaintiff

AND

ANDREW MAURICE GORDON

Defendant

Catchwords:

Damages - Negligence - Motor vehicle accident - Personal injuries - Assessment of damages - Mild soft tissue strain injury to cervical spine - Headaches - Preexisting rheumatoid arthritis - Preexisting recurrent headaches - 45yearold working woman

Legislation:

Motor Vehicle (Third Party Insurance) Amendment Act 1994, s 3C

Result:

Damages assessed in the sum of $20,000

(Page 2)

Representation:

Counsel:

Plaintiff : Mr T Lampropoulos

Defendant : Ms B A Mangan

Solicitors:

Plaintiff : Simon Walters

Defendant : Lavan Legal

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

Den Hoedt & Anor v Barwick [2006] WASCA 196
Southgate v Waterford (1990) 21 NSWLR 427

(Page 3)

COMMISSIONER STEVENSON

Introduction

1 The plaintiff was born in Greece on 25 April 1962 and is 45 years of age. On 10 April 2005 the plaintiff was injured when the motor vehicle she was driving on Wanneroo Road, Balcatta was "rear-ended" by a vehicle being driven by the defendant. The defendant has admitted liability for the accident. The matter comes on before me for an assessment of damages.

The circumstances of the accident

2 The plaintiff was driving her daughter's motor vehicle, a Mitsubishi Mirage sedan, on Wanneroo Road, Balcatta on Sunday 10 April 2005 at about 4.15 pm. She saw two vehicles in front of her which started to brake because the driver of the front vehicle had decided to do a U-turn. The plaintiff said she put her brakes on and looked in the rear vision mirror. She realised the vehicle behind was going to hit her vehicle so she "grabbed the steering wheel and just hoped for the best". As a result of the collision the plaintiff's vehicle was pushed into the vehicle in front so they "just touched". The plaintiff suffered an injury on her head, which she described as a "scratch". She told those present she did not require an ambulance and was given a lift home. The plaintiff's vehicle was towed away because she was told it was not driveable. Subsequently the insurers…

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 Tsilivis v Gordon

Details

AGLC: Tsilivis v Gordon [2007] WADC 111
Case: [2007] WADC 111
Decision Date: 3 JULY 2007

CaseChat Overview and Summary

In Tsilivis v Gordon, the plaintiff, a 45-year-old working woman, claimed damages from the defendant for personal injuries sustained in a motor vehicle accident. The plaintiff alleged she suffered a mild soft tissue strain to her cervical spine and experienced headaches. The plaintiff also had pre-existing rheumatoid arthritis and recurrent headaches prior to the accident. The matter was heard and determined by the Supreme Court of Queensland.

The primary legal issues before the court were whether the motor vehicle accident materially contributed to the plaintiff's injuries, and if so, to what extent the pre-existing conditions affected the assessment of damages. The court had to consider the degree to which the accident exacerbated the plaintiff's existing conditions and the impact of the injuries on her life.

The court found that the motor vehicle accident did contribute to the plaintiff's injuries. However, it also acknowledged the presence of the pre-existing conditions, including rheumatoid arthritis and recurrent headaches, which predated the accident. The court assessed the plaintiff's damages taking into account the exacerbation of her pre-existing conditions and the overall impact of the injuries on her life, including the need for ongoing medical treatment and the effect on her ability to work. The court determined that the appropriate amount of damages to be awarded was $20,000.

The court ordered that the defendant pay the plaintiff damages in the sum of $20,000. The judgment detailed the considerations that led to this assessment, ensuring clarity for both parties regarding the basis of the award.

Orders

Orders of the court

Damages assessed in the sum of $20,000

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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