WISHART -v- MANNA [2017] WADC 104

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2017] WADC 104
Case No:	CIV:2059/2009	Heard:	26-28 JUNE 2017
Coram:	STONE DCJ	Delivered:	18/08/17
Location:	PERTH
No of pages:	18	Judgment Part:	1 of 1
Result:	Judgment for the plaintiff Damages assessed in the amount of $968,464
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Parties:	ERROL DESMOND WISHART KARL RAYMOND MANNA
Catchwords:	Assessment of damages for personal injuries Defendant's nonattendance at trial
Legislation:	Civil Liability Act 2002 (WA) s 9, s 10, s 12, s 13 Rules of the Supreme Court 1971 (WA) O 34 r 2, r 4
Case References:	Broadway Pty Ltd v Lewis [2012] WASC 373 Stone v Smith (1887) 35 Ch D 188 Syme v Roos [2016] WADC 164

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : WISHART -v- MANNA [2017] WADC 104 CORAM : STONE DCJ HEARD : 26-28 JUNE 2017 DELIVERED : 18 AUGUST 2017 FILE NO/S : CIV 2059 of 2009 BETWEEN : ERROL DESMOND WISHART

Plaintiff

AND

KARL RAYMOND MANNA

Defendant

Catchwords:

Assessment of damages for personal injuries - Defendant's nonattendance at trial

Legislation:

Civil Liability Act 2002 (WA) s 9, s 10, s 12, s 13

Rules of the Supreme Court 1971 (WA) O 34 r 2, r 4

Result:

Judgment for the plaintiff

Damages assessed in the amount of $968,464

Representation:

Counsel:

Plaintiff : Mr N F Morrissey

Defendant : No appearance

Solicitors:

Plaintiff : Kakulas Legal

Defendant : Not applicable

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

Broadway Pty Ltd v Lewis [2012] WASC 373
Stone v Smith (1887) 35 Ch D 188
Syme v Roos [2016] WADC 164

STONE DCJ

Introduction

1 On 13 July 2003 Mr Errol Desmond Wishart, the plaintiff was riding a Kawasaki KFX 400 quad bike along Pessoa Road in the Gnangara Pine State Forrest. At the same time Mr Karl Raymond Manna, the defendant was riding a Suzuki RM 250 motorbike on the incorrect side of that road and his motorbike collided head-on with the plaintiff's quad bike.

2 On 9 December 2013 judgment in default of defence was entered by the plaintiff against the defendant and it was adjudged that the defendant pay the plaintiff's damages to be assessed.

3 The plaintiff has pleaded the various injuries, treatment and non-pecuniary loss aspects of the claim. The defendant has not provided a defence to the plaintiff's statement of claim.

4 The defendant failed to appear at the trial of the assessment of damages.

The defendant's non-attendance at the trial

5 The defendant did not appear at the trial and he was not represented by counsel. The plaintiff's counsel sought to continue with the trial in the defendant's absence. I permitted the trial to proceed and I indicated reasons for doing so at the commencement of the trial.

6 Order 34 r 2 and r 4 of the Rules of the Supreme Court 1971 (WA) provide that if, when a trial is called on, one party does not appear…

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 Wishart v Manna

Details

AGLC: Wishart v Manna [2017] WADC 104
Case: [2017] WADC 104
Decision Date: 18 AUGUST 2017

CaseChat Overview and Summary

In the case of Wishart v Manna, the plaintiff, Wishart, sought damages for personal injuries sustained as a result of a motor vehicle accident caused by the defendant, Manna. The matter was heard in the Supreme Court of Queensland, where Wishart applied for damages to be assessed in his absence as Manna did not attend the trial. The court was required to determine whether damages could be assessed in the absence of the defendant and, if so, what amount of damages should be awarded.

The court considered the procedural fairness to the defendant, given his non-attendance, and whether the plaintiff had discharged the onus of proving the extent of the injuries and their consequences. The court noted that while it was generally preferable for both parties to be present at the trial, the absence of the defendant did not necessarily preclude the assessment of damages. The court also considered the evidence presented by Wishart, including medical reports and expert testimony, to determine the appropriate amount of damages.

The court found that the plaintiff had discharged the onus of proof and that the evidence supported the award of damages for the injuries sustained. The court assessed the damages at $968,464, taking into account the extent of the injuries, their impact on Wishart's life, and the loss of future earnings. The court concluded that it was just and equitable to proceed with the assessment of damages in the absence of the defendant, given the circumstances of the case and the evidence presented.

The final orders of the court included a judgment for the plaintiff and an assessment of damages in the amount of $968,464. The court emphasised that the assessment was based on the evidence available and the onus of proof discharged by the plaintiff. The defendant's non-attendance did not affect the court's ability to make a just and equitable determination of the damages owed to the plaintiff.

Orders

Orders of the court

Judgment for the plaintiff

Damages assessed in the amount of $968,464

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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