Wyithe v Raslan No. DCCIV-95-911 Judgment No. D3638 - [1997] SADC 3638

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour Judge Lee

Hearing

07/05/97 to 09/05/97, 12/05/97 to 13/05/97.

Catchwords

DAMAGES - PERSONAL INJURY Motor vehicle accident - 47 year old painting contractor -laceration to right kneee causing permanent damage to internal structures - non-economic loss s35A, scale 12, $13,800 - past loss of earning capacity $64,000 - future loss of earning capactiy $86,000 - total award before reduction for contributory negligence $174,542.80.

Materials Considered

• Wright v Donatelli (1995) 65 SASR 307;
• Graham v Baker (1961) 106 CLR 140;
• Cole v Ellis (1992) 60 SASR 481;
• Cole v Ellis (1993) 170 LSJS 265, referred to.

Representation

Plaintiff GEORGE WYITHE:
Counsel: MR M BIRCHALL - Solicitors: LINDEN FAIRCLOUGH &; CO

Defendant NAWAL RASLAN:
Counsel: MR J COSTELLO - Solicitors: FINLAYSONS

DCCIV-95-911

Judgment No. D3638

1 August 1997

(Civil)

WYITHE V RASLAN

Civil

Judge Lee

On 23 October 1989, the plaintiff was driving his panel van in a northerly direction along Boliver Road, Burton, and the defendant was driving her motor vehicle in a westerly direction along Burton Road, Burton, when the vehicles collided at the intersection of those roads and the plaintiff sustained serious injuries.

The plaintiff claims damages against the defendant.I need say no more about the circumstances of the accident, because liability has been agreed 90:10 in favour of the plaintiff.

The plaintiff's damages fall for assessment under various heads, the most significant being loss of past and future earning capacity.His summons was not issued until 31 July 1995, which was well after the expiry of the three year limitation period.I will deal at the outset with his application for an extension of time pursuant to section 48 of the Limitation of Actions Act 1936.

About four to five weeks after the accident, the plaintiff consulted a solicitor, Mr John Murphy, and gave him the accounts which he had received to that point.Mr Murphy said he would make a claim for damages on the plaintiff's behalf against the defendant.It is difficult to discern from Murphy's file, which is in evidence as exhibit P8, what instructions the plaintiff gave on the initial consultation, but it is reasonable to suppose that he passed on what he knew about the accident and his injuries at that time.He did not know the full name and address of the defendant and he did not know her version of the circumstances.He did not know that the accident had been witnessed by a number of persons.

The plaintiff did not see Murphy again until about eighteen months later, so that would have been in the first half of 1991.The plaintiff said he telephoned Murphy regularly, and on all occasions was told that the matter was in hand. Eventually, after a further delay and after Murphy had broken a number of appointments, the plaintiff went to another solicitor.First he saw Mr Dowd, who was then in partnership with Mr Fairclough.Then he saw Mr Fairclough.Fairclough first took instructions from the plaintiff…

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 Wyithe v Raslan No. DCCIV-95-911 Judgment No. D3638

Details

AGLC: Wyithe v Raslan No. DCCIV-95-911 Judgment No. D3638 [1997] SADC 3638
Case: [1997] SADC 3638
Decision Date: 1 August 1997

CaseChat Overview and Summary

In the District Court of South Australia, the case of Wyithe v Raslan (DCCIV-95-911) involved a claim for damages by George Wyithe against Nawal Raslan. The incident, a motor vehicle collision that occurred on 23 October 1989, resulted in serious injuries to Wyithe, specifically a lacerated right knee causing permanent damage to the internal structures. The primary legal issues centered around the assessment of damages, particularly loss of earning capacity, both past and future, and non-economic loss under section 35A of the Wrongs Act 1936.

The court addressed the plaintiff's application for an extension of the limitation period to file his summons, granted under section 48 of the Limitation of Actions Act 1936. The plaintiff had initially consulted with solicitor Mr. John Murphy shortly after the accident but was dissatisfied with the progress of his claim. After switching to another solicitor, Mr. Fairclough, the plaintiff discovered critical facts about the accident, including the existence of witnesses and the defendant's admission of fault, which were not previously known. The court found it just to extend the limitation period to the date of the summons, 31 July 1995.

The court meticulously evaluated the plaintiff's evidence and medical reports to determine the extent of his injuries and their impact on his ability to work. The plaintiff, a painting contractor, had to modify his work due to physical limitations imposed by his injuries. Despite these limitations, he managed to maintain his business profitability through skilful management. The court assessed his past economic loss at $64,000 and future economic loss at $86,000, with non-economic loss valued at $13,800. Special damages were agreed upon at $9,992.80, leading to a total award of $174,542.80 before reduction for contributory negligence.

Ultimately, the court awarded the plaintiff 90% of the total damages, resulting in a judgment of $157,088.52 against the defendant. The court also noted that it would hear further submissions regarding interest and costs.

Orders