DISTRICT COURT OF QUEENSLAND
CITATION:
Hariharan v Vojtisek & Anor [2020] QDC 276
PARTIES:
BALASUBRAMANYAM HARIHARAN
(plaintiff)
v
EVELYN JANE VOJTISEK
(first defendant)
and
ALLIANZ AUSTRALIA INSURANCE LIMITED(second defendant)
FILE NO:
D27/19
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court, Southport
DELIVERED ON:
30 October 2020
DELIVERED AT:
Southport
HEARING DATE:
28, 29 September 2020
JUDGE:
Kent QC DCJ
ORDER:
(a) Judgment for the plaintiff against the defendants in the amount of $269,840.64
(b) I will hear the parties as to costs
CATCHWORDS:
INSURANCE – MOTOR VEHICLES – COMPULSORY THIRD PARTY INSURANCE AND LIKE SCHEMES – RISK OR LIABILITY – BODILY OR PERSONAL INJURY – where the plaintiff was involved in a collision between his vehicle and that driven by the first defendant, insured by the second defendant – where the plaintiff suffered an injury to the cervical spine as a result of the accident – where liability is admitted – where the plaintiff was employed as a folder machine operator in Australia – where the plaintiff, an Indian born Australian citizen, relocated to India after the accident, always intending to eventually return to Australia – whether, but for the accident, the plaintiff would have remained working in Australia for a period of time – whether the plaintiff could have worked in Australia for part of the year, and in India for the remainder – whether the plaintiff was fit to return to work operating a folding machine or other similar form of work after the accident.
LEGISLATION:
Civil Liability Act 2003 (Qld), ss 9, 11, 55
Civil Liability Regulation2014 (Qld), sch 4
Evidence Act 1977 (Qld), s 92
Uniform Civil Procedure Rules 1999 (Qld), rr 149, 150, 155, 156
Workers Compensation and Rehabilitation Act2003 (Qld)CASES:
Allianz Australia Limited v McCarthy [2012] QCA 312
Anderson v Gregory [2008] QCA 419
Ballesteros v Chidlow [2006] QCA 323
Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279
Berry v CCL Secure Pty Ltd [2020] HCA 27
Daniel Peebles v Workcover Queensland [2020] QSC 106
Dare v Pulham (1982) 148 CLR 658
Gould v Mt Oxide Mines Ltd (in liq) (1916) 22 CLR 490
Graham v Baker (1961) 106 CLR 340
Henderson v Dalrymple Bay Coal Terminal Pty Ltd [2005] QCA 355
Klein v SPD Services Pty Ltd [2013] QSC 134
Leotta v Public Transport Commission of New South Wales (1976) 50 ALJR 666
Malec v J. C. Hutton Pty Ltd (1990) 169 CLR 638
Medlin v State Government Insurance Commissioner (1995) 182 CLR 1
Nicholls v Curtis [2010] QCA 303
Petchell v Du Pradal; Pia Du Pradal v Petchell [2015] QCA 132
Purkess v Crittenden (1965) 114 CLR 164
Reardon-Smith v Allianz Australia Insurance Ltd [2007] QCA 211
Strong v Woolworths Limited (2012) 246 CLR 182
Thiess Pty Ltd v FFE Minerals Aust Pty Ltd [2007] QSC 209
Wallace v Kam (2013) 250 CLR 375COUNSEL: Mr P Cullinane QC for the plaintiff
Mr G O’Driscoll for the defendants
SOLICITORS: Macrossan and Amiet…
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- AGLC
- Hariharan v Vojtisek [2020] QDC 276
- Case
- [2020] QDC 276
- Decision Date
CaseChat Overview and Summary
The central legal issues for the court to decide included whether the plaintiff would have remained employed in Australia had it not been for the accident, and if so, for how long. Additionally, the court had to determine if the plaintiff could have worked part-time in Australia and part-time in India. Another significant issue was whether the plaintiff was fit to return to his previous work operating a folding machine or other similar work after the accident.
In addressing these issues, the court examined the evidence presented by both parties. The plaintiff's evidence and the expert opinions were pivotal in assessing the extent of the plaintiff's injuries and their impact on his future earning capacity. The court found that the plaintiff was prevented from returning to full-time work operating a folding machine or any work involving heavy or repetitive physical tasks. Instead, the plaintiff was deemed fit for light to light-moderate work with the ability to vary his activity and posture regularly.
The court concluded that the plaintiff was entitled to damages for his injuries, taking into account both general damages and future economic loss. The court accepted the plaintiff's submissions on the injury scale value and awarded damages accordingly. The total amount awarded was $269,840.64, covering both past and future economic losses.
The court further directed that the parties would be heard regarding the costs of the proceedings. This case underscores the importance of detailed evidence and expert opinion in personal injury claims, particularly when assessing the impact of injuries on future earning capacity and work suitability.
Orders
Orders of the court
(a) Judgment for the plaintiff against the defendants in the amount of $269,840.64
(b) I will hear the parties as to costs
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The plaintiff further submits that the evidence of Dr Cook is that the plaintiff may have had wrist problems by his mid 50’s but with aids could continue in manual work until his mid 60’s. He submits for an assessment of loss on the basis of splitting his time between Australia and India, in the past and for seven years into the future; and for the future beyond that, on the basis of being in the Australian labour market. For the next seven years, this is calculated at $650 per week, amounting to $201,110 (paragraph 8 (d) (ix) of the Amended Statement of Claim; and thereafter $750 per week for 20 years, discounted by 15%, amounting to $301,920, plus superannuation. Consideration and conclusionGeneral Damages As I have outlined above, I do not consider the pleadings point to be an obstacle to the plaintiff’s recovery of damages on a basis broadly consistent with the essential elements of his pleaded case, even though some of the particulars vary according to the evidence at trial. Further, I accept the opinions of Dr Cook in preference to those of Dr Dickinson, for the reasons expressed. In my view, the plaintiff’s submissions should be accepted as to the assessment of the injury scale value of seven, resulting in general damages of $10,620. Past Economic Loss In relation to past economic loss, the plaintiff does not concede that the case falls into the category of those covered by s55 of the Civil Liability Act, because precise calculations are possible. This may or may not be so; in any case, it is prudent to be as precise as possible and in making such an assessment, as outlined above, it is necessary to set out the assumptions, methodology and reasoning; thus satisfying the requirements of s55 whether or not this is strictly necessary (I am inclined to the view that it is). As concluded above, the plaintiff suffered a significant injury leaving him with a significant degree of permanent disability. I do not accept that his current difficulties are attributable to pre-existing degenerative changes, but rather to the accident. Thus the plaintiff has satisfied his onus of proof in bringing himself within the provisions of s 11(1)(a) of the Civil Liability Act in relation to the question of factual causation. I further conclude, in accordance with the evidence of the plaintiff and Dr Cook, as submitted on behalf of the plaintiff, that he is prevented from returning to work, at least on a fulltime basis, operating a folding machine in a sheet metal type of facility and that, as Dr Cook opines, he is not fit for any form of work that was of a very heavy, heavy or even moderately heavy nature especially if it involved constant or repetitive bending, lifting, carrying, working in awkward or confined spaces or operating any tools, plant or equipment especially if this caused vibration to his upper limbs and upper body. He seems to be able to carry out work of a light nature or even light-moderate nature if he is able to vary his activity and posture on a regular basis throughout his working day as well as being able to vary his activities.