Coull by his joint next friends Sheila Coull and Lorna Ann Cross v Makings

[2010] WADC 31 (S)

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION	: PERTH
CITATION	:  COULL by his joint next friends SHEILA COULL and LORNA ANN CROSS -v- MAKINGS [2010] WADC 31 (S)
CORAM	: DAVIS DCJ
HEARD	:  16-20 FEBRUARY; 12 JUNE; 19-20 NOVEMBER; 3 DECEMBER 2009 & 15 FEBRUARY 2010
DELIVERED	:  17 MARCH 2010
SUPPLEMENTARY
DECISION	:  1 APRIL 2010
FILE NO/S	:  CIV 710 of 2004
BETWEEN	:  ANDREW WEIR COULL by his joint next friends SHEILA COULL and LORNA ANN CROSS Plaintiff

AND

COREY PAUL MAKINGS

Defendant

Catchwords:

Assessment of general damages - Slip rule - Amendment to judgment sum and orders made

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943 s 3C(13)

[2010] WADC 31 (S)

Result:

Judgment for plaintiff following apportionment increased to $887,355.50

Representation:

Counsel:

Plaintiff	:	Mr T Offer
Defendant	:	Mr D R Clyne

Solicitors:

Plaintiff	:	Stephen Browne Lawyers
Defendant	:	K N Allan

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

Coull by his joint next friends Sheila Coull and Lorna Ann Cross v Makings

[2010] WADC 31

Monaco v Arnedo Pty Ltd (1994) 13 WAR 522

DAVIS DCJ [2010] WADC 31 (S)

1. DAVIS DCJ: On 17 March 2010 I delivered my reasons for decision in this matter, Coull by his joint next friends Sheila Coull and Lorna Ann Cross v Makings [2010] WADC 31 ("my reasons"). After hearing from counsel for the parties, I made orders including an order for payment of the whole of the judgment sum of $879,165.50 to the Public Trustee.

2. By notice of motion filed on behalf of Mr Coull on 18 March 2010 application was made pursuant to the "slip rule" to amend the orders that had been made on 17 March 2010. This was to allow the deduction from the judgment sum of $879,165.50 of certain monies which were first required to be repaid to Centrelink and Medicare Australia, with the balance to be paid to the Public Trustee.

3              At the hearing of this application on 19 March 2010 the parties also

brought to my attention that there was an error in my reasons relating to the calculation of Mr Coull's non-pecuniary loss, or general damages. In my reasons at [247] I had referred to the maximum amount of damages that may be awarded under s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 as from 1 July 2008 as an amount of $309,000. There had, since the trial and before I delivered my reasons, been an increase to the maximum amount of damages.

4 Pursuant to s 3C(13) of the Motor Vehicle (Third Party Insurance) Act the amount for damages for non-pecuniary loss is to be determined on the date of the judgment. As at the date of judgment in this matter the maximum amount of damages that might be awarded under the Act for non-pecuniary loss had increased to a sum of $327,000.

5              As I had determined that Mr Coull's general damages were

65 per cent of the most extreme case, the award that should have been made for general damages or non-pecuniary loss was $212,550 (65 per cent of $327,000) not $200,850 as set out in my reasons at [250]. This means the total amount of Mr Coull's damages should have been as follows:

Past economic loss	$252,156.00
Future loss of earning capacity	$369,420.00
Past superannuation	$ 20,876.00
Future superannuation	$ 27,431.00
Wilson v Mcleay damages	$ 7,500.00
Past gratuitous services	$ 24,499.00

DAVIS DCJ [2010] WADC 31 (S)

Paid services	$ Nil
Special damages	$ 15,400.00
Travelling expenses	$ 1,114.00
Future paid services	$ Nil
The cost of a "leisure buddy"	$ 26,624.00
Future gratuitous services	$ 13,730.00
Future medical needs	$ 63,885.00
Future travelling expenses	$ 1,000.00
General damages	$212,550.00

TOTAL $1,036,185.00

6              Deducting 30 per cent for contributory negligence the judgment sum

payable would be $725,329.50, without Public Trustee's fees. Adding Public Trustee's fees, which I assessed in the sum of $162,026, increases the award of damages to a total sum of $887,355.50.

7              The amount of the judgment awarded to Mr Coull therefore required

correction, pursuant to Supreme Court Rules O 21 r 10, or alternatively the Court's inherent jurisdiction to rectify the order to avoid injustice: Monaco v Arnedo Pty Ltd (1994) 13 WAR 522 at 524.

8              Accordingly on 19 March 2010 I made the following orders on

Mr Coull's application pursuant to the slip rule, in accordance with a minute of orders consented to and signed by counsel for both parties, in replacement of the orders which I made on 17 March 2010:

1.

Judgment be entered for the plaintiff against the defendant in the sum of $887,355.50;

2.

In satisfaction of the judgment the defendant do within 10 days of the date of service of this judgment or the receipt by the Insurance Commission of Western Australia of a notice from the Delegate of the Secretary of the Department of Social Security pursuant to the provisions of the Social Security Act 1991 in respect to moneys to be repaid by the plaintiff from the judgment sum pursuant to the provisions of the Social Security Act 1991 in respect to the plaintiff's claim, whichever is the latter, pay:

(a) to the Receiver of Public Monies (Centrelink) such sum that relates to the plaintiff's claim as is notified as due and

DAVIS DCJ [2010] WADC 31 (S)

payable from the judgment sum pursuant to the provisions

of the Social Security Act 1991;

(b)	to Medicare Australia pursuant to the provisions of the Health & Other Services (Compensation) Act 1995 the sum of $309.09 being 70 per cent of such amount as was notified as due and payable in accordance with a Notice of Charge dated 3 March 2010; and
(c)	to the Public Trustee the balance of the judgment sum for investment on behalf of the plaintiff, such investment not to be restricted to the Common Account.

3.          The defendant do pay the plaintiff's costs of the action to be assessed and the plaintiff have leave to within 21 days apply for a special order for costs.

4.          There be liberty to apply in respect to the investment moneys.