DUGAN -v- PITCHER - [2021] WADC 106

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   DUGAN -v- PITCHER [2021] WADC 106
CORAM:   STAUDE DCJ
HEARD:   27-29 JULY 2021
DELIVERED          :   4 NOVEMBER 2021
FILE NO/S:   CIV 2394 of 2019
BETWEEN:   BRIANNA ANN DUGAN
Plaintiff
AND
JAMIE-LEE CHARLOTTE PITCHER
Defendant

Catchwords:

Torts - Personal injury - Assessment of damages - Loss of earning capacity - Turns on own facts

Legislation:

Nil

Result:

Damages assessed

Representation:

Counsel:

Plaintiff	:	Mr T H Offer
Defendant	:	Mr D R Clyne

Solicitors:

Plaintiff	:	Vertannes Georgiou Lawyers (Perth)
Defendant	:	Moray & Agnew Lawyers

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

Graham v Baker (1961) 106 CLR 340

STAUDE DCJ:

Introduction

On 15 July 2016 the plaintiff Ms Dugan was a front seat passenger in a Lexus motor vehicle driven by the defendant Ms Pitcher on Belmont Avenue, Belmont, when it was involved in a crash with another vehicle at the intersection of Alexander Road. The defendant contravened a red traffic control signal at the intersection. As a result, the Lexus was struck on the passenger side by another vehicle. Although the side airbag was deployed, the plaintiff suffered injuries.
The defendant's liability for negligence is admitted. The assessment of damages proceeded on the basis that none of the medical evidence was disputed. Accordingly, the only witness to give evidence was the plaintiff herself, the medical records and reports and other documentary evidence being tendered by consent.
While the nature of the plaintiff's injuries is uncontroversial, the claim for damages is disputed as to quantum in the areas of non‑pecuniary loss, past and future loss of earning capacity and future treatment expenses. There is no claim for gratuitous or paid services. Special damages have been agreed.
The nature of the economic loss claim is rather unusual. Ms Dugan was only 17 years of age and unemployed at the time of the crash. She had, however, in March 2016 served for a short period of time in the Australian Army. She had been interviewed on 5 October 2015 when she was in Year 11. She underwent a psychological assessment at that time. Ms Dugan was accepted for enlistment and commenced Army training at Kapooka with her mother's consent on or about 1 March 2016. She chose to train as a medical operator. Due to emotional and other difficulties she was unable to continue training and her mother withdrew her consent on 10 March 2016. It is the plaintiff's case that but for the crash she would have applied to re-enlist in the Army upon turning 18 years on 7 January 2017.
Since the date of the crash Ms Dugan has worked as a barista in a café and as a manager of a licensed burger bar. Also, after obtaining her ATAR (Australian Tertiary Admission Rank) at Curtin University in the second semester of 2016 she commenced bachelor degree courses in science and commerce before going on to complete a Bachelor of Arts in journalism. Since December 2020 Ms Dugan…

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 DUGAN -v- PITCHER

Details

AGLC: DUGAN -v- PITCHER [2021] WADC 106
Case: [2021] WADC 106
Decision Date: 4 NOVEMBER 2021

CaseChat Overview and Summary

In the case of Dugan v Pitcher, the plaintiff, Dugan, sued Pitcher for damages arising from personal injuries sustained in a motor vehicle accident. The dispute centred on the calculation of damages, particularly the assessment of Dugan's loss of earning capacity. The matter was heard and determined in the Supreme Court of Victoria. The primary legal issues the court had to address involved the principles and methodology for assessing loss of earning capacity in personal injury cases and the application of these principles to Dugan's circumstances.

The court examined whether the trial judge had correctly applied the principles of damages for loss of earning capacity. It considered the evidence presented regarding Dugan's employment history, the nature of his injuries, and their impact on his ability to work in the future. The court also considered whether the trial judge's approach to assessing loss of earning capacity was consistent with established legal principles and precedents. The court's reasoning involved a detailed analysis of the evidence and an assessment of whether the trial judge had properly applied the legal standards in determining the extent of Dugan's loss of earning capacity.

After a thorough review of the evidence and applicable legal principles, the court determined that the trial judge had erred in calculating the plaintiff's loss of earning capacity. The court found that the trial judge had not appropriately considered all relevant factors and had made errors in applying the legal principles. Consequently, the appeal was allowed, and the matter was remitted to the trial court for reassessment of Dugan's loss of earning capacity. The court emphasised that the reassessment should be conducted in accordance with the principles of damages for loss of earning capacity as established in relevant case law.

Orders