JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BROCX -v- MOUNSEY [2010] WASCA 196
CORAM: PULLIN JA
NEWNES JA
MURPHY JA
HEARD: 25 JUNE 2010
DELIVERED : 14 OCTOBER 2010
FILE NO/S: CACV 103 of 2009
BETWEEN: MARGARET BROCX
Appellant
AND
ROBERT MEAKINS MOUNSEY
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :KEEN DCJ
Citation :BROCX -v- MOUNSEY [2009] WADC 113
File No :CIV 600 of 2007
Catchwords:
Negligence - Personal injury - Assessment of damages - Principles of appellate court review - Whether deduction for contingencies for loss of future earnings includes work-related expenses - Whether primary judge erred in assessment of damages
Legislation:
Motor Vehicle (Third Party Insurance) Act1943 (WA), s 3C(2)
Result:
Appeal allowed in part
Category: B
Representation:
Counsel:
Appellant: Mr J R Criddle
Respondent: Mr D R Sands
Solicitors:
Appellant: Havilah Legal
Respondent: Talbot Olivier
Case(s) referred to in judgment(s):
Brocx v Mounsey [2009] WADC 113
Commissioner of Taxation (Cth) v St Helen's Farm (ACT) Pty Ltd (1981) 146 CLR 336
Crystal Wall Pty Ltd v Pham [2005] NSWCA 449
Dell v Dalton (1991) 23 NSWLR 528
Den Hoedt v Barwick [2006] WASCA 196; (2006) 46 MVR 30
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Insurance Commission of Western Australia v Weatherall [2007] WASCA 264
Kember v Thackrah [2000] WASCA 198
Koeck v Persic (1996) Aus Torts Reports 81-386, 63,360
Marsland v Andjelic (1993) 31 NSWLR 162
Miller v Jennings (1954) 92 CLR 190
Nestle Australia Ltd v McDougall Robert [1998] NSWCA 158
Paul v Rendell (1981) 34 ALR 569
Robinson v Riley [1971] 1 NSWLR 403
Southgate v Waterford (1990) 21 NSWLR 427
Van Gervan v Fenton (1992) 175 CLR 327
Villasevil v Pickering [2001] WASCA 143; (2001) 24 WAR 167
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485
PULLIN JA: I agree with Newnes JA.
NEWNES JA: This is an appeal from a decision of Keen DCJ in the District Court in which his Honour assessed the appellant's entitlement to damages for injuries sustained by her in a motor vehicle accident on 3 May 2001 in the sum of $532,024: Brocx v Mounsey [2009] WADC 113. The liability of the respondent was admitted.
The appellant contends that the primary judge erred in a number of respects in his assessment of the damages to which she was entitled, resulting in an award that was substantially less than it should have been.
Background
The appellant was born on 7 November 1955. She was educated at Kent Street High School until September 1971. She left school at age 16. In 1972 the appellant commenced part‑time studies at the Mount Lawley campus of TAFE for a Certificate in Applied Science. The following year she returned to full‑time studies at the Mount Lawley campus. In 1980 after the birth of her daughter the appellant…
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- AGLC
- Brocx v Mounsey [2010] WASCA 196
- Case
- [2010] WASCA 196
- Decision Date
CaseChat Overview and Summary
The court examined the principles of appellate court review and the application of contingencies in damages assessment. The court noted that while contingencies such as sickness, accident, unemployment, and industrial disputes are relevant, positive considerations like advancements in employment should also be accounted for. The court further considered the guidance provided by Luntz, which suggests that the maximum discount for all contingencies should be under 10% in the average case, although it acknowledged that this is less than the standard 15% allowed in some jurisdictions. The court concluded that the primary judge erred in making an additional 5% deduction for work-related expenses as these should have been included in the net income determination rather than deducted as a contingency. Consequently, the court found that the primary judge's assessment of damages was flawed.
In light of the court's findings, the appeal was allowed to the extent that the 5% deduction for work-related expenses was inappropriate, and the matter was remitted to the primary judge for reassessment of the damages for loss of future earnings. The final orders included a direction for the primary judge to reconsider the deduction for contingencies, ensuring that work-related expenses were appropriately accounted for in the net income calculation.
Orders
Orders of the court
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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
In Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485, 497, the High Court described the four factors, apart from death, that were relevant in calculating contingencies as sickness, accident, unemployment and industrial disputes. The court observed that not all contingencies are adverse and that any positive considerations (such as advancement in employment) are also to be taken into account. The court pointed out that contingencies are to be considered in terms of their likely impact on the earning capacity of the injured person concerned, not by reference to the workforce generally. Professor Luntz in his well‑known text, Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002) [6.4.14], suggests that the maximum discount for all contingencies should be under 10% in the average case. He notes, however, that that is much less than the standard 15% allowed in New South Wales and some other jurisdictions. In this State, in Kember v Thackrah [2000] WASCA 198, Malcolm CJ (with whom Kennedy and Murray JJ agreed) described 15% as 'a very heavy discount' [27]. In Villasevil v Pickering [2001] WASCA 143; (2001) 24 WAR 167 [38], Anderson J (with whom Malcolm CJ and Groves AJ agreed) said that the discount for ordinary contingencies is rarely more than 15% and usually between 5% ‑ 10%. It must be stressed, however, that while those statements provide some guidance, each case must depend upon its particular facts. I turn then to the appellant's contention that his Honour erred in the amount of the deduction he made in respect of both the appellant's loss of earning capacity and her retained earning capacity. As I understand his Honour's findings, he found that a deduction of 15% should be made from the appellant's future loss of earnings as a consultant to take into account the vicissitudes of life and to make some allowance for expenses that the appellant would have incurred in earning her living as a consultant. However, in respect of the appellant's retained earning capacity as an employed environmental scientist, his Honour concluded that no deduction should be made for expenses, as those would be met by the employer, and a deduction of 10% should therefore be made for the vicissitudes of life. In other words, it is, I think, to be inferred from his Honour's reasons at [686] that he made an additional 5% deduction from the appellant's future loss of earnings as a consultant in order to allow for work‑related expenses. In my respectful view, his Honour erred in doing so. In the first place, it appears that his Honour had in mind expenses which would ordinarily be incurred in the course of earning an income as a consultant, rather than expenses of a contingent nature. The former should be (and indeed, for reasons I am about to come to, I am satisfied were) taken into account in determining the net income that the appellant would otherwise have earned, rather than deducted on the basis of a contingency. Secondly, his Honour erred in concluding that in respect of the figures given in evidence for the earnings of a consultant no allowance had been made for ordinary work‑related expenses.