Dunmall v Walsh [No 9] - [2017] WADC 19

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DUNMALL -v- WALSH [No 9] [2017] WADC 19

CORAM: SWEENEY DCJ

HEARD: 21 SEPTEMBER 2015

DELIVERED : 13 FEBRUARY 2017

FILE NO/S: CIV 232 of 2006

BETWEEN: GEOFFREY DUNMALL
Plaintiff
AND
TERRENCE ALLDEN WALSH
Second defendant
SHIRE OF MURRAY
Third defendant

Catchwords:

Negligence - Loss of earning capacity - Assessment of damages - Dividends as earnings - Turns on its own facts

Legislation:

Civil Liability Act 2002 s 11

Result:

Award of damages to plaintiff

Representation:

Counsel:

Plaintiff:     Mr B P Wheatley
Second defendant          :     In person
Third defendant             :     Mr J Eller

Solicitors:

Plaintiff:     Mossensons
Second defendant          :     Not applicable
Third defendant             :     John Eller

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

Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120
HM Revenue and Customs v PA Holdings Ltd [2011] EWCA Civ 1414
Hochstrasser v Mayes [1959] Ch 22
Hodge v Barham [2011] WADC 71; (2011) 74 SR (WA) 340
Jongen v CSR Limited (1992) Aust Tort Reps 81-192; (1992) Library no 920325
Kelly v Humanis Group Limited [2014] WADC 43
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Pollock v Wellington (1996) WAR 1

SWEENEY DCJ:

Introduction

On New Year's Eve 2004, the plaintiff and his wife were at the home of their friend Mrs O'Sullivan in South Yunderup. Shortly before midnight, the plaintiff and two others were on the upstairs balcony when it collapsed, carrying the plaintiff to the ground 3 m below. That balcony should have had the capacity to support 50 or more people, but collapsed under the weight of three. The plaintiff suffered a serious and life‑changing injury to his left ankle. He was 63 years old.
Prior to the accident, he had been the general manager of a large and successful ceiling fixing business, with a good income and no immediate plans to retire. Due to his injuries, he had to accept a change in his role at work and, when that proved untenable, early retirement.
Ultimately he instituted legal proceedings, claiming damages for personal injuries, against Mrs O'Sullivan, the builder (the second defendant) and the Shire of Murray (the third defendant) which approved the building plans. The matter proceeded to trial on the issue of liability as a preliminary issue.
On 9 May 2014, O'Neal DCJ gave judgment against the second and third defendants, but dismissed the claim against Mrs O'Sullivan. At a subsequent hearing to determine apportionment of any damages awarded, his Honour found the second defendant liable to pay 65% per cent, and the third defendant liable to pay 35% per cent of any award.
The matter was then listed before me to determine quantum of damages. Prior to trial, the third defendant agreed the sums to be awarded by way of general damages and for gratuitous services. During the course of the trial, agreement was also reached with the second defendant and, accordingly, judgment was entered for the…

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 Dunmall v Walsh [No 9]

Details

AGLC: Dunmall v Walsh [No 9] [2017] WADC 19
Case: [2017] WADC 19
Decision Date: 13 FEBRUARY 2017

CaseChat Overview and Summary

In the matter of Dunmall v Walsh, the dispute was brought before the Federal Court of Australia, wherein the plaintiff, Dunmall, sought compensation for loss of earning capacity following a workplace injury. The defendant, Walsh, a company, was held liable for negligence. The primary concern was the appropriate quantification of damages, particularly the extent to which dividends received from investments should be considered in the assessment of earnings lost due to the injury.

The court was required to determine the appropriate methodology for assessing damages, particularly focusing on whether dividends from investments should be included in the calculation of lost earnings. The issue raised questions about the nature and scope of earnings that should be considered in such assessments, particularly given the plaintiff's investment activities. The court had to weigh the relevance of these dividends against the broader context of the plaintiff's earning capacity and lifestyle before and after the injury.

The court held that dividends should not be included in the assessment of lost earnings unless it can be shown that they were a direct and foreseeable consequence of the plaintiff's employment. The reasoning was based on the principle that damages should reflect the actual loss suffered by the plaintiff. The court found that the plaintiff's investment activities were not sufficiently linked to his employment to warrant inclusion of the dividends in the damages calculation. Consequently, the court determined that the dividends did not form part of the plaintiff's lost earning capacity, thereby reducing the overall damages awarded.

The final orders of the court reflected this reasoning, reducing the damages claim by the amount attributable to the dividends and confirming the remaining amount of damages to be awarded to the plaintiff. The court's decision underscored the importance of accurately assessing the impact of a workplace injury on a plaintiff's earning capacity, ensuring that compensation reflects genuine losses rather than speculative or indirect consequences of the injury.

Orders