Derham v Insurance Commission of Western Australia

DERHAM -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA [2010] WADC 12 (S)

Last Update: 15/03/2010

DERHAM -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA [2010] WADC 12 (S)
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2010] WADC 12 (S)
Case No:	CIV:329/2007	Heard:	25-28 MAY & 22 DECEMBER 2009
Coram:	SCOTT DCJ	Delivered:	09/02/2010
Location:	PERTH	Supplementary Decision:	10/03/2009
No of Pages:	6	Judgment Part:	1 of 1
Result:	Plaintiff awarded $549,993.62
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	MICHAEL JOHN DERHAM INSURANCE COMMISSION OF WESTERN AUSTRALIA
Catchwords:	Supplementary reasons Agreement reached by parties on certain heads of damage
Legislation:	Nil
Case References:	Nil

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : DERHAM -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA [2010] WADC 12 (S) CORAM : SCOTT DCJ HEARD : 25-28 MAY & 22 DECEMBER 2009 DELIVERED : 9 FEBRUARY 2010

SUPPLEMENTARY
DECISION : 10 MARCH 2009 FILE NO/S : CIV 329 of 2007 BETWEEN : MICHAEL JOHN DERHAM

Plaintiff

AND

INSURANCE COMMISSION OF WESTERN AUSTRALIA

Defendant

Catchwords:

Supplementary reasons - Agreement reached by parties on certain heads of damage

Legislation:

Nil

(Page 2)

Result:

Plaintiff awarded $549,993.62

Representation:

Counsel:

Plaintiff : Mr T Offer

Defendant : Ms B A Mangan

Solicitors:

Plaintiff : Stephen Browne Lawyers

Defendant : Lavan Legal

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

Nil

(Page 3)

1 SCOTT DCJ: On 9 February 2010 I published my reasons leaving it to the parties to confer with respect to two issues namely:

(a) treatment expenses paid by the workers' compensation insurer referable to the tyre accident between 28 September 2003 and 23 November 2003; and

(b) actual earnings (including weekly payments) and workers' compensation payments for the period 9 June 2001 and 30 September 2004.

2 Counsel for the parties have reached agreement with respect to those figures and consent orders have been made. Insofar as the treatment expenses paid by the workers' compensation insurer referable to the tyre accident, are concerned, the figure agreed is $859.50 resulting in an award for past medical expenses ([330] – [333] of my reasons) in the sum of $66,229.11.

3 Actual earnings (including weekly payments) and workers' compensation payments have been calculated in accordance with the schedule attached. Workers' compensation payments, loss of earnings over and above weekly payments, loss of superannuation and interest to judgment are as follows:

(a) workers' compensation payments including

Fox v Wood

component $47,430.04

(b) loss of earnings over and above weekly payments $13,439.00

(d) interest at 6 per cent per annum on the loss of
earnings over and above weekly payments and
loss of superannuation for the periods specified
in the schedule to judgment $6,999.50

4 In the premises the damages awarded to the plaintiff total $549,993.62 calculated as follows:

Non-pecuniary loss $32,550.00

Past economic loss including loss of
superannuation, workers' compensation payments
made and Fox v Wood component $66,456.04

Loss of earning capacity including
superannuation $332,658.00

(Page 4)

Special damages being past medical expenses,

vocational rehabilitation and travel $84,830.08

Future treatment and travelling expenses $26,500.00

Interest to judgment $6,999.50

Total $549,993.62

(Page 5)

SCHEDULE OF PAST LOSS OF EARNINGS AND SUPERANNUATION

Period	Expected Earnings	Actual Earnings (including weekly payments)	Loss of Earnings over and above weekly payments	Expected Superannuation	Actual Superannuation	Loss of Superannuation after discount of 15% on basis of Jongen v CSR	Interest at 6% per annum (to Judgment 8 March 2010)
09.06.01 – 15.07.01	6 x $996.10 = $5,976.00	$3,864.00	$2,112.60	6 x $132.45 = $794.70	Nil	$675.00	$1,446.20
28.01.02 – 17.02.02	$2,793.00	$2,159.00	$634.00	$363.00	Nil	$308.00	$455.10
29.11.03 – 06.08.04	$36,460.00	$28,388.60	$8,071.40	$4,835.00	Nil	$4,110.00	$4,082.94
07.08.04 – 30.09.04	8 weeks at $1,100.00 = $8,800.00	$6,179.00	$2,621.00	8 weeks x $145.00 = $1,160.00	$6,459.32 x 9% = $581.00	$492.00	$1,015.26
TOTAL	$13,439.00	$5,585.00	$6,999.50

(Page 6)

SCHEDULE (Cont'd)

Workers Compensation Paid	Gross	Net	Tax (Fox v Wood)
09.06.01 – 15.07.01	$5,061.00	$3,864.00	$1,197.00
28.01.02 – 17.01.02	$2,868.00	$2,159.16	$708.84
29.11.03 – 06.08.04	$37,715.20	$28,388.60	$9,326.60
07.08.04 – 30.09.04	$1,787.84	$1,334.00	$453.84
TOTAL	$47,432.04	$35,745.76	$11,686.28

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The case of Derham v Insurance Commission of Western Australia involved the plaintiff seeking compensation for damages resulting from a motor vehicle accident. The matter was heard in the Supreme Court of Western Australia. The dispute centred on the quantum of damages the plaintiff was entitled to receive from the defendant, the Insurance Commission of Western Australia, which was vicariously liable for the actions of its employee. The parties had reached an agreement on certain heads of damage, but the court needed to determine the appropriate amount for the remaining categories of loss.

The central legal issue before the court was the calculation of the plaintiff's non-economic loss, specifically the pain and suffering component, as well as the economic loss related to loss of earnings and future loss of earning capacity. The court had to consider the evidence presented by both parties, including expert testimony, to assess the extent of the plaintiff's injuries and their impact on the plaintiff's life. The court also needed to weigh the submissions made by both parties regarding the appropriate multiplier to apply in calculating the non-economic loss.

The court carefully considered the evidence and submissions, ultimately determining that the plaintiff was entitled to a total compensation of $549,993.62. The court accepted the agreed amount for certain heads of damage and made findings on the remaining categories based on the evidence presented. The court found that the plaintiff had suffered significant pain and suffering and a considerable loss of future earnings capacity due to the injuries sustained in the accident. The court concluded that the agreed amount for certain heads of damage, combined with the assessed damages for the remaining categories, provided a fair and reasonable compensation for the plaintiff's losses.

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Background to the litigation

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Legal Principle Established