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Wallace v Sherrell

Wallace v Sherrell

Case [2015] NSWDC 179 25 August 2015

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District Court

New South Wales

Medium Neutral Citation: Wallace v Sherrell [2015] NSWDC 179
Hearing dates: 7, 8, 9 July & 19 August 2015
Date of orders: 25 August 2015
Decision date: 25 August 2015
Jurisdiction: Civil
Before: Levy SC DCJ
Decision:
1. Verdict and judgment for the plaintiff in the sum of $746,165;
2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;
3. The exhibits may be returned;
4. Liberty to apply on 7 days’ notice if further or other orders are required.
Catchwords: TORTS – negligence - motor vehicle accident – negligence admitted; DAMAGES – assessment of claimed heads of damage – evaluation of conflicting medical and allied opinions
Legislation Cited: Civil Liability Act 2002, s 5D
Evidence Act 1995, s 60
Motor Accidents Compensation Act 1999, s 126, s 131, s 136, s 141B
UCPR, r 31.27, r 31.28, Sch 7 cl 5(1)(c)
Cases Cited: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Coles Supermarkets Australia Pty Limited v Haleluka
Cupac v Cannone [2015] NSWCA 114
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Fox v Wood [1981] HCA 41; (1981) 148 CLR 438
Glen v Sullivan [2105] NSWCA 191
Larson v Commissioner of Police [2004] NSWCA 126
Majkic v Bonnano [2008] NSWCA 253
Mason v Demasi [2009] NSWCA 227
Penrith City Council v Parks [2004] NSWCA 201
Pham v Shui [2006] NSWCA 373
Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Sampco Pty Ltd v Wurth [2015] NSWCA 117
State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Zhang v Golden Eagle International Trading Pty Ltd & Ors [2006] NSWCA 25
Category: Principal judgment
Parties: Monica Wallace (Plaintiff)
Mitchell Sherrell (Defendant)
Representation:
Counsel:
Mr A Lidden SC with Ms E Welsh (Plaintiff)
Mr W Fitzsimmons (Defendant)
Solicitors:
Brydens (Plaintiff)
Moray & Agnew (Defendant)

File Number(s): 2014/57353
Publication restriction: None

Judgment

Table of Contents

Nature of case

[1] – [3]

Issues

[4] – [5]

Credit

[6] – [8]

Facts

[9] – [170]

Plaintiff’s background

[10] – [13]

Accident circumstances

[14]

Injuries and treatment

[15] – [20]

Subsequent motor vehicle accident

[21]

Medical and allied reviews

[22] – [125]

Resolution of conflicting medical opinions

[126] – [163]

Disabilities

[164] – [168]

Effects of disabilities on plaintiff’s ability to work

[169] – [170]

Mitigation

[171]

Assessment of damages

[172] – [245]

Past economic loss

[173] – [175]

Future economic loss

[176] – [185]

Past loss of superannuation

[186] – [189]

Future loss of superannuation

[190]

Past paid domestic assistance

[191] – [198]

Past gratuitous domestic assistance

[199] – [221]

Future paid domestic assistance

[222] – [226]

Future gratuitous domestic assistance

[227] – [232]

Fox -v- Wood

[233]

Future out-of-pocket expenses

[234] – [243]

Past out-of-pocket expenses

[244]

Summary of damages assessment

[245]

Disposition

[246]

Costs

[247]

Orders

[248]

Nature of case

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 Wallace v Sherrell

Details

AGLC: Wallace v Sherrell [2015] NSWDC 179
Case: [2015] NSWDC 179
Decision Date: 25 August 2015

CaseChat Overview and Summary

The case of Wallace v Sherrell involved a dispute over a motor vehicle accident where the defendant admitted negligence. The plaintiff sought compensation for damages resulting from the accident. The case was heard in a relevant Australian court. The primary issues were the assessment of the claimed heads of damage and the evaluation of conflicting medical and allied opinions regarding the extent of the plaintiff’s injuries and the appropriate compensation.

The court was tasked with determining the correct amount of damages to be awarded to the plaintiff, considering the medical evidence and expert opinions presented. The plaintiff claimed significant physical and psychological injuries, while the defendant argued for a lower amount of damages. The court had to weigh the credibility and reliability of the medical evidence, and decide on the most appropriate compensation for the plaintiff's injuries and other losses. The court also had to consider the impact of the injuries on the plaintiff's ability to work and quality of life.

The court found the plaintiff's evidence more credible and awarded damages accordingly. The court accepted the plaintiff's medical reports which detailed the extent of the injuries and their impact on the plaintiff's life. The court determined that the plaintiff was entitled to compensation for pain and suffering, loss of earnings, and future medical expenses. After evaluating the conflicting evidence, the court concluded that the total amount of $746,165 was an appropriate award. The court also ordered that the defendant pay the plaintiff's costs on the ordinary basis unless otherwise ordered. The exhibits were to be returned, and the plaintiff was granted liberty to apply for further or other orders within seven days' notice.

Orders

Orders of the court

1. Verdict and judgment for the plaintiff in the sum of $746,165;

2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;

3. The exhibits may be returned;

4. Liberty to apply on 7 days’ notice if further or other orders are required.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

Wallace v Sherrell [2015] NSWDC 179

Cases Citing This Decision

No citing cases yet.

Cases Cited

SampCo Pty Ltd v Wurth [2015] NSWCA 117
Citation 1 (Para 204)

…criptive of that issue. The medical witnesses have not been qualified to provide reliable expert evidence on such matters: Sampco Pty Ltd v Wurth [2015] NSWCA 117, at [83].…
Cupac v Cannone [2015] NSWCA 114
Citation 2 (Para 134)

…ut cross-examination: Majkic v Bonnano [2008] NSWCA 253, at [26], citing Larson v Commissioner of Police [2004] NSWCA 126, at [48]; Cupac v Cannone [2015] NSWCA 114, at [17] – [18]. Notwithstanding this, the analysis must proceed as best can be done in the circumstances.…
Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343
Citation 3 (Para 211)

…nt and reliably indicative of the need and the extent of the need for such domestic assistance: Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343, at [55].…
Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Citation 4 (Para 185)

…2000] NSWCA 133, (2000) 54 NSWLR 536; Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13. I consider an appropriate buffer amount to be $150,000. I therefore assess the plaintiff’s damages for future economic loss in the buffer amount of $1…
Mason v Demasi [2009] NSWCA 227
Citation 5 (Para 27)

…nics. This is because its purpose was to record matters of injury and treatment, not matters affecting the liability analysis: Mason v Demasi [2009] NSWCA 227. For example, those matters suggesting the plaintiff’s vehicle had minimal damage to the front of her vehicle do not take into account the fact that she had…
Majkic v Bonnano [2008] NSWCA 253
Citation 6 (Para 134)

…e not called, and where their reports were the subject of criticism in the plaintiff’s submissions, but without cross-examination: Majkic v Bonnano [2008] NSWCA 253, at [26], citing Larson v Commissioner of Police [2004] NSWCA 126, at [48]; Cupac v Cannone [2015] NSWCA 114, at [17] – [18]. Notwithstanding this, the…
Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99
Citation 7 (Para 185)

…Council v Parks [2004] NSWCA 201; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536; Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13. I consider an appropriate buffer amount to be $150,000. I therefore assess the plaintiff’s dam…
Pham v Shui [2006] NSWCA 373
Citation 8 (Para 62)

…should be viewed with great caution as it was not an expert opinion in the sense contemplated by UCPR r 31.28 or UCPR Sch 7 cl 5(1)(c): Pham v Shui [2006] NSWCA 373. Furthermore, in forming his opinions, he took into account some submissions that were made by the insurer, the content of which did not feature in the…
Zhang v Golden Eagle International Trading Pty Ltd & Ors [2006] NSWCA 25
Citation 9 (Para 186)

…loss must proceed in two stages in view of the gross and net components of that assessment: Zhang v Golden Eagle International Trading Pty Ltd & Ors [2006] NSWCA 25, at [60] – [63].…
Larson v Commissioner of Police [2004] NSWCA 126
Citation 10 (Para 134)

…m in the plaintiff’s submissions, but without cross-examination: Majkic v Bonnano [2008] NSWCA 253, at [26], citing Larson v Commissioner of Police [2004] NSWCA 126, at [48]; Cupac v Cannone [2015] NSWCA 114, at [17] – [18]. Notwithstanding this, the analysis must proceed as best can be done in the circumstances.…
Penrith City Council v Parks [2004] NSWCA 201
Citation 11 (Para 185)

…impairment of earning capacity and having due regard to the sheltered and precarious nature of her present employment: Penrith City Council v Parks [2004] NSWCA 201; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536; Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; Allianz Australia In…
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Citation 12 (Para 164)

…from the medical reports as evidence of the plaintiff’s early post-injury difficulties, treatment and disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995. Similarly, and consistent with that approach, I have drawn upon the content of the tendered medica…
State of New South Wales v Moss [2000] NSWCA 133
Citation 13 (Para 185)

…ing due regard to the sheltered and precarious nature of her present employment: Penrith City Council v Parks [2004] NSWCA 201; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536; Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13. I…
Fox v Wood [1981] HCA 41
Citation 14 (Para 233)

…ount of tax that had been deducted from the weekly workers’ compensation payments the plaintiff has received since the subject accident: Fox v Wood [1981] HCA 41; (1981) 148 CLR 438 .…
Purkess v Crittenden [1965] HCA 34
Citation 15 (Para 139)

…ail, the defendant carries the evidentiary onus for proof of that proposition: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164. The obstacle in the path of acceptance of that submission is the force of the evidence of Dr Conrad and the other medical practiti…
Watts v Rake [1960] HCA 58
Citation 16 (Para 139)

…ot due the subject accident. For that submission to prevail, the defendant carries the evidentiary onus for proof of that proposition: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164. The obstacle in the path of acceptance of that submission is the force of…
Glen v Sullivan [2105] NSWCA 191
Citation 17 (Para 139)

…laintiff has satisfied the onus which she carried in demonstrating those symptoms are due to the effects of the subject accident: Glen v Sullivan [2105] NSWCA 191; s 5D of the CL Act .…

Legislation Cited

Civil Liability Act 2002 (TAS) 5D
2 mentions (from Para 3)
Evidence Act 1995 (Cth) 60
2 mentions (from Para 164)
Motor Accidents Compensation Act 1999 (NSW) 126
2 mentions (from Para 3)

Medium Neutral Citation:	Wallace v Sherrell [2015] NSWDC 179
Hearing dates:	7, 8, 9 July & 19 August 2015
Date of orders:	25 August 2015
Decision date:	25 August 2015
Jurisdiction:	Civil
Before:	Levy SC DCJ
Decision:	1. Verdict and judgment for the plaintiff in the sum of $746,165; 2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered; 3. The exhibits may be returned; 4. Liberty to apply on 7 days’ notice if further or other orders are required.
Catchwords:	TORTS – negligence - motor vehicle accident – negligence admitted; DAMAGES – assessment of claimed heads of damage – evaluation of conflicting medical and allied opinions
Legislation Cited:	Civil Liability Act 2002, s 5D Evidence Act 1995, s 60 Motor Accidents Compensation Act 1999, s 126, s 131, s 136, s 141B UCPR, r 31.27, r 31.28, Sch 7 cl 5(1)(c)
Cases Cited:	Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 Coles Supermarkets Australia Pty Limited v Haleluka Cupac v Cannone [2015] NSWCA 114 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 Fox v Wood [1981] HCA 41; (1981) 148 CLR 438 Glen v Sullivan [2105] NSWCA 191 Larson v Commissioner of Police [2004] NSWCA 126 Majkic v Bonnano [2008] NSWCA 253 Mason v Demasi [2009] NSWCA 227 Penrith City Council v Parks [2004] NSWCA 201 Pham v Shui [2006] NSWCA 373 Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 Sampco Pty Ltd v Wurth [2015] NSWCA 117 State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536 Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 Zhang v Golden Eagle International Trading Pty Ltd & Ors [2006] NSWCA 25
Category:	Principal judgment
Parties:	Monica Wallace (Plaintiff) Mitchell Sherrell (Defendant)
Representation:	Counsel: Mr A Lidden SC with Ms E Welsh (Plaintiff) Mr W Fitzsimmons (Defendant) Solicitors: Brydens (Plaintiff) Moray & Agnew (Defendant)
File Number(s):	2014/57353
Publication restriction:	None

Nature of case	[1] – [3]
Issues	[4] – [5]
Credit	[6] – [8]
Facts	[9] – [170]
Plaintiff’s background	[10] – [13]
Accident circumstances	[14]
Injuries and treatment	[15] – [20]
Subsequent motor vehicle accident	[21]
Medical and allied reviews	[22] – [125]
Resolution of conflicting medical opinions	[126] – [163]
Disabilities	[164] – [168]
Effects of disabilities on plaintiff’s ability to work	[169] – [170]
Mitigation	[171]
Assessment of damages	[172] – [245]
Past economic loss	[173] – [175]
Future economic loss	[176] – [185]
Past loss of superannuation	[186] – [189]
Future loss of superannuation	[190]
Past paid domestic assistance	[191] – [198]
Past gratuitous domestic assistance	[199] – [221]
Future paid domestic assistance	[222] – [226]
Future gratuitous domestic assistance	[227] – [232]
Fox -v- Wood	[233]
Future out-of-pocket expenses	[234] – [243]
Past out-of-pocket expenses	[244]
Summary of damages assessment	[245]
Disposition	[246]
Costs	[247]
Orders	[248]