Broome Helicopter Services Pty Ltd v Anderson - [2014] WASCA 12

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BROOME HELICOPTER SERVICES PTY LTD -v- ANDERSON [2014] WASCA 12

CORAM: PULLIN JA
NEWNES JA
MURPHY JA

HEARD: 4 OCTOBER 2013

DELIVERED : 16 JANUARY 2014

FILE NO/S: CACV 141 of 2012

BETWEEN: BROOME HELICOPTER SERVICES PTY LTD
Appellant
AND
JENNIFER ANDERSON
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STAVRIANOU DCJ
Citation  :ANDERSON -v- BROOME HELICOPTER SERVICES PTY LTD [2012] WADC 158
File No  :CIV 1381 of 2010

Catchwords:

Damages - Personal injury - Calculation of past and future economic loss - Whether primary judge erred in calculation of amount of annual leave respondent would have taken - Whether discount should have been made for contingencies in calculation of past economic loss

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr D R Clyne
Respondent: Mr T Lampropoulos SC

Solicitors:

Appellant: Squire Sanders
Respondent: Bradley Bayly Legal

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

Anderson v Broome Helicopter Services Pty Ltd [2012] WADC 158
Commissioner of Taxation (Cth) v St Helens Farm (ACT) Pty Ltd [1981] HCA 4; (1981) 146 CLR 336
Fox v Wood [1981] HCA 41; (1981) 148 CLR 438
Montemaggiori v Wilson [2011] WASCA 177
Paul v Rendell (1981) 34 ALR 569
Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402
Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327

JUDGMENT OF THE COURT: This is an appeal against a decision of Stavrianou DCJ in the District Court in which his Honour awarded the respondent damages in the sum of $448,378 for personal injury (Anderson v Broome Helicopter Services Pty Ltd [2012] WADC 158). The appellant appeals against the assessments of past and future economic loss. Liability was not in issue.

The accident

The respondent's injuries were sustained on 12 May 2008 when the helicopter in which she and her husband were passengers crashed when coming in to land at Imintji, about 220 km east of Derby in the north‑west of Western Australia. At the time of the accident the respondent was the assistant manager and her husband was the manager of the store at Imintji, having commenced work there in April 2007. She had trained as a hairdresser and previously worked as such for much of her working life.
Following the accident, the respondent was conveyed to Derby Hospital where she remained overnight before being taken to Broome Hospital. The respondent and her husband remained in Broome for a few days and spent a night in Derby before returning to the Imintji store. The respondent said she found, however, that due to her injuries she was unable to continue in her employment at the store and, in September 2008, she and her husband left and returned to their home on the Gold Coast in Queensland. The respondent has not been engaged in any form of employment since.
The respondent brought an action…

Details

AGLC: Broome Helicopter Services Pty Ltd v Anderson [2014] WASCA 12
Case: [2014] WASCA 12
Decision Date: 16 JANUARY 2014

CaseChat Overview and Summary

In the matter of Broome Helicopter Services Pty Ltd v Anderson, the appellant, Broome Helicopter Services, sought to appeal a decision of the District Court that awarded the respondent, Anderson, damages in the sum of $448,378 for personal injury. The injuries were sustained by the respondent when the helicopter in which she and her husband were passengers crashed near Imintji in the north-west of Western Australia. Liability for the accident was admitted by the appellant. The primary judge found that the respondent sustained injuries to the lumbar, cervical and thoracic spine, and to both shoulders. These injuries prevented her from continuing her employment as an assistant manager and from returning to her previous occupation as a hairdresser. The District Court assessed the damages for personal injury based on past and future economic loss.

The legal issues before the court were whether the primary judge erred in the calculation of the amount of annual leave the respondent would have taken, and whether a discount should have been made for contingencies in the calculation of past economic loss. Broome Helicopter Services argued that the primary judge should have made an adjustment to the respondent's salary for annual leave, and that a discount should have been made for contingencies such as illness and annual leave in the calculation of past economic loss. The respondent, Anderson, argued that there was no error in the primary judge's calculation of damages.

The court found that the primary judge was correct in not adjusting the respondent's salary for annual leave, as the respondent had not been engaged in any employment since the accident and there was no evidence to suggest that she would have taken annual leave had she remained employed. The court also found that a discount for contingencies should not have been made in the calculation of past economic loss, as the respondent's injuries were such that it was unlikely she would have been able to take any leave or be absent from work. The court held that the primary judge's assessment of damages was correct and that there was no error in the calculation of past and future economic loss.

The appeal was dismissed, and the original decision of the District Court was upheld. The court's decision stands, and the damages awarded to the respondent remain at $448,378. The appellant is liable for the payment of these damages to the respondent.

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

JUDGMENT OF THE COURT: This is an appeal against a decision of Stavrianou DCJ in the District Court in which his Honour awarded the respondent damages in the sum of $448,378 for personal injury (Anderson v Broome Helicopter Services Pty Ltd [2012] WADC 158). The appellant appeals against the assessments of past and future economic loss. Liability was not in issue. The respondent's injuries were sustained on 12 May 2008 when the helicopter in which she and her husband were passengers crashed when coming in to land at Imintji, about 220 km east of Derby in the north‑west of Western Australia. At the time of the accident the respondent was the assistant manager and her husband was the manager of the store at Imintji, having commenced work there in April 2007. She had trained as a hairdresser and previously worked as such for much of her working life. Following the accident, the respondent was conveyed to Derby Hospital where she remained overnight before being taken to Broome Hospital. The respondent and her husband remained in Broome for a few days and spent a night in Derby before returning to the Imintji store. The respondent said she found, however, that due to her injuries she was unable to continue in her employment at the store and, in September 2008, she and her husband left and returned to their home on the Gold Coast in Queensland. The respondent has not been engaged in any form of employment since. The respondent brought an action for damages for personal injury against the appellant, the operator of the helicopter. Liability was admitted and the action proceeded to an assessment of damages. The primary judge found that in the accident the respondent sustained, among other things, injuries to the lumbar, cervical and thoracic spine, and to both shoulders [49], [70]. His Honour accepted the evidence of Dr Ker, a consultant physician, that as a consequence of her injuries the respondent had pain and stiffness at the cervicothoracic junction, a degree of lower back pain with a curtailed capacity to bend and lift, and curtailment of her left shoulder movement. His Honour also accepted Dr Ker's opinion that the respondent was not fit, and there was no likelihood that in the foreseeable future she would be fit, to return to work as an assistant store manager in a role involving manual handling, or to return to work in her previous occupation as a hairdresser because of the requirement to have her upper limbs in an elevated position [80], [88], [109]. His Honour found that the appellant was restricted in her capacity to engage in any employment involving lifting and bending activities [109]. His Honour found that her 'capacity to work as a hairdresser and as an assistant manager [had] been destroyed by the crash' [144]. In relation to the appellant's employment intentions, the primary judge noted that the Anderson's employment at the store was for a period of one year commencing on 31 October 2007, with an option to extend that for a further two year period. The Andersons were regarded by their employer as competent employees and they had given no intimation to their employer that they wished to leave Imintji. His Honour accepted the respondent's evidence that she and her husband had no set plans as to retirement age. He found that but for the accident the respondent would have continued in her employment at the store [105].

Ratio Decidendi

Legal Principle Established

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