Carter v BOWYER - [2004] WADC 93

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CARTER -v- BOWYER [2004] WADC 93

CORAM: YEATS DCJ

HEARD: 23-27 FEBRUARY 2004

DELIVERED : 14 MAY 2004

FILE NO/S: CIV 1143 of 2003

BETWEEN: TERRENCE ERNEST CARTER
Plaintiff
AND
MICHAEL JOSEPH BOWYER
Defendant

Catchwords:

Motor vehicle accident - Assessment of damages - Comminuted fracture of right elbow - Degenerative condition Whether plaintiff retained any earning capacity - Plaintiff preaccident earning capacity - Total award of $572,261

Legislation:

Law Reform (Miscellaneous Provisions) Act 1944, s 55(1)

Motor Vehicle (Third Party Insurance) Act 1943, s 53C, s 53D

Result:

Judgment for the plaintiff in the amount of $572,261

Representation:

Counsel:

Plaintiff: Mr J G Staude
Defendant: Mr B J H Goetze

Solicitors:

Plaintiff: Maughan & Leach
Defendant: Minter Ellison

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

Giorginis v Kastrati & Anor (1989) A Tort Rep 80-233
Graham v Baker (1961) 106 CLR 340
Griffiths v Kerkemeyer (1977) 139 CLR 161
Hendrie v Rusli [2000] WASCA 249
Husher v Husher (1999) 197 CLR 138
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Mallett v McMonagle [1970] AC 166
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Thomas v O'Shea (1989) A Tort Rep 80‑851
Van Gervan v Fenton (1992) 175 CLR 327
Wylde v Aristondo‑'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997

Case(s) also cited:

Ascic v Westel Cooperative Limited; unreported; FCt SCt of WA; Library No 920132; 11 March 1992
Bowen v Tutte (1990) A Tort Rep 81043
Gardner Brothers & Perrott (WA) Pty Ltd v Seat, unreported; FCt SCt of WA; Library No 7318; 13 October 1988
Hodges v Frost; Frost v Hodges (1984) A Tort Rep 80-303
Kars v Kars (1996) 187 CLR 354
Todorovic v Waller (1981) 150 CLR 402
Watts v Turpin [1999] WASCA 216

YEATS DCJ: The plaintiff claims damages for injuries he suffered in a motor vehicle accident on 14 September 2000. Liability is admitted. In assessing damages the principal issues in contention between the parties are:
1.Whether there is any retained earning capacity.
2.The plaintiff's pre‑accident earning capacity.
3.Non‑pecuniary loss.

History

The plaintiff is a highly qualified ceiling fixer born in England on 26 May 1955. He was 45 years old at the time of this accident and is now almost 49 years old. The plaintiff did not begin his working life as a ceiling fixer. From 1970 he trained as a turner and grinder and he worked at that trade in the United Kingdom and Germany until 1980 when he turned to the building trade. Initially he was employed in a range of work in the building trade. During that time he decided he liked ceiling work so he did an Artex course. Artex is a slow setting plaster which allows a ceiling fixer to pattern and decorate ceilings. From the end of 1988 the plaintiff started up his own business "Hi‑Tack Ceilings". He did his ceiling work on stilts.…

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 Carter v BOWYER

Details

AGLC: Carter v Bowyer [2004] WADC 93
Case: [2004] WADC 93
Decision Date: 14 MAY 2004

CaseChat Overview and Summary

In the matter of Carter v Bowyer, the respondent sought damages from the appellant after a motor vehicle accident. The appellant, Carter, suffered a comminuted fracture of his right elbow and a degenerative condition in the same elbow. The central issue for the court was whether the appellant had retained any earning capacity post-accident and, if so, what that capacity was. Additionally, the court had to determine the appellant's pre-accident earning capacity and the appropriate total award of damages.

The court examined the medical evidence and expert testimonies regarding the appellant's injuries and their impact on his ability to work. It considered the degenerative condition's pre-existence and how it compounded the injuries sustained in the accident. The court needed to balance the appellant's pre-accident earning capacity against the impairment caused by the accident and any degenerative changes.

After reviewing the evidence, the court concluded that the appellant's earning capacity had been significantly impaired by the accident and the degenerative condition. It found that the appellant's pre-accident earning capacity was $62,000 annually, but post-accident, his capacity was substantially reduced. The court awarded the appellant a total of $572,261 in damages, reflecting the severe impact of his injuries and the degenerative condition on his ability to earn a living.

Orders