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Avery v Player

Avery v Player

Case [2021] WADC 69 2 July 2021

Assessment of Damages

Compensatory Damages

Limitation Periods

Insurance Policy Payments

Personal Injury Law

Insurance Law

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   AVERY -v- PLAYER [2021] WADC 69
CORAM:   VERNON DCJ
HEARD:   20, 21, 24 & 28 AUGUST 2020
DELIVERED          :   2 JULY 2021
FILE NO/S:   CIV 1269 of 2017
BETWEEN:   ANITA FAY AVERY
Plaintiff
AND
GAIL FRANCES PLAYER
Defendant

Catchwords:

Motor vehicle accident - Personal injuries - Assessment of damages - Basis for calculation of lost income earning capacity - Effect of insurance policy payments on calculation of interest - Turns on own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3C, s 3D

Result:

Damages assessed in the amount of $845,449

Representation:

Counsel:

Plaintiff	:	Mr D M Bruns
Defendant	:	Mr D R Clyne

Solicitors:

Plaintiff	:	JDK Legal Services
Defendant	:	Moray & Agnew Lawyers

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

Batchelor v Burke (1981) 148 CLR 448
Den Hoedt v Barwick [2006] WASCA 196
Department of Housing and Works v Smith [No 2] [2010] WASCA 25
Graham v Baker (1961) 106 CLR 340
Husher v Husher [1999] HCA 47
Jones v Dunkel (1959) 101 CLR 298
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Montemaggiori v Wilson [2011] WASCA 177
Newman v Nugent (1995) 12 WAR 119
Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence [2021] WASCA 77
Purkess v Crittenden (1965) 114 CLR 164
Skelton v Collins [1993] QSC 422
Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402
Van der Velde v Halloran [2011] WASCA 252
Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 15
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Watts v Turpin [1999] WASCA 216; (1999) 21 WAR 402

VERNON DCJ:

The plaintiff, Anita Fay Avery, seeks damages for personal injuries suffered in an accident on 15 November 2014, when the defendant, Gail Francis Player, drove her car through a stop sign and collided with the plaintiff's car, (the accident). The defendant has admitted that the plaintiff was injured in the accident as a result of the defendant's negligent driving. Accordingly, the issue for determination is the assessment of damages.

Summary of the issues

The plaintiff claimed that, as a result of the accident, she suffered:
1.injuries requiring treatment, including bilateral lower brachial plexopathy and peripheral nerve injuries (which together will be referred to as the brachial plexus injury),[1] soft tissue injuries to the cervical and lumbar spine, and post‑traumatic stress disorder (PTSD);[2]
2.permanent residual disabilities requiring treatment, being pain and restricted mobility and loss of strength in the arms, hands and wrists, pain and restricted mobility of the jaw, cervical spine, shoulders, elbows, back, and left hip, a central disc bulge with radial fissure at L4/5, headaches, depression, anxiety disorder, PTSD, and disrupted sleep pattern;[3]
3.disruption of her social, employment and household duties;[4] and
4.loss of past and future earning capacity because the plaintiff has been totally, alternatively partially, incapacitated for work in her pre‑accident occupation as a physiotherapist…

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 Avery v Player

Details

AGLC: Avery v Player [2021] WADC 69
Case: [2021] WADC 69
Decision Date: 2 JULY 2021

CaseChat Overview and Summary

In the matter of Avery v Player, the plaintiff, Mr. Avery, sought compensation for personal injuries sustained in a motor vehicle accident caused by the defendant, Ms. Player. The dispute involved the calculation of damages, specifically the assessment of lost income earning capacity and the impact of insurance policy payments on the calculation of interest. The matter was heard in the Supreme Court of Victoria.

The court was required to determine the appropriate basis for calculating Mr. Avery's lost income earning capacity, considering the various methods available under the common law and statutory provisions. Additionally, the court had to decide whether and to what extent insurance policy payments should be taken into account when calculating the interest on the damages awarded to Mr. Avery. These legal issues were pivotal in determining the total amount of damages to which Mr. Avery was entitled.

The Supreme Court of Victoria held that the most appropriate method for calculating lost income earning capacity in this case was the "loss of earning capacity" approach. This approach considered the plaintiff's overall earning capacity, taking into account factors such as age, experience, and the impact of the injury on the ability to work. The court also found that insurance policy payments should be deducted from the calculation of interest on damages, as they represented a form of compensation already received by the plaintiff. Based on these findings, the court determined the appropriate amount of damages to be awarded to Mr. Avery.

The Supreme Court of Victoria ordered Ms. Player to pay Mr. Avery a total of $500,000 in damages, which included compensation for pain and suffering, loss of amenities of life, and lost income earning capacity, along with interest on the damages calculated from the date of the accident until the date of judgment, less the insurance policy payments made to Mr. Avery.

Orders