Hariharan v Vojtisek

Case [2020] QDC 276

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 375
COUNSEL:

Mr P Cullinane QC for the plaintiff

Mr G O’Driscoll for the defendants
SOLICITORS:

Macrossan and Amiet…

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Details
AGLC
Hariharan v Vojtisek [2020] QDC 276
Case
[2020] QDC 276
Decision Date

CaseChat Overview and Summary

The case of Hariharan v Vojtisek involves a personal injury claim brought by the plaintiff, Hariharan, against the first defendant, Vojtisek, and the second defendant, the insurer of Vojtisek. The plaintiff was involved in a motor vehicle accident that caused him to suffer a cervical spine injury. Liability for the accident was admitted by the defendants. The primary dispute centered on the calculation of damages, particularly the future economic loss due to the plaintiff's inability to work after the accident.

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

In respect of future economic loss it is pleaded that the accident caused a minor and temporary soft tissue injury which has long since resolved and is thus not productive of loss. The evidenceThe plaintiff By agreement the plaintiff’s evidence in chief as to the facts relating to quantum was given by way of a “quantum statement”, exhibit 1. Background and work history In essence, the plaintiff was born in Bengaluru in India; the city formally known as Bangalore. He completed a year 12 equivalent education and then completed an apprenticeship as a metal machinist, which is the equivalent of a fitter and turner here in Australia. He has a diploma of mechanical engineering. He was employed for a number of years in Bengaluru in this capacity. His older brother had migrated to Australia in 1994, and this was the impetus for the plaintiff to migrate to Australia in 2003 partly, as he says, because he thought his life prospects were better. It was also apparently important for him to make an impression on his future wife’s family that he had good prospects. He was then in a relationship with his now wife, Anu; it seems to be implicit that perhaps these expectations were part of the perceived social mores of the plaintiff’s culture. The plaintiff migrated to Melbourne where he found employment as a production operator with the Bosch Group for three months on a casual basis. He then worked for Dana Spicer Axle in Clayton, Victoria. He worked for that company for some time. In August 2005, the plaintiff suffered an injury to his left wrist. He attended his general practitioner but thought it was merely a sprain. However the pain did not subside and eventually a CT scan revealed a fracture of the left scaphoid. He received Workers’ Compensation Benefits and had surgery in May 2006, including fixation of the fracture with a screw. Further in 2006 he achieved Australian citizenship. His wife had joined him in Australia. His sons, born here, are Australian citizens. The plaintiff now has overseas citizenship of India but has a right to reside there. The plaintiff gave evidence that he realised by becoming an Australian citizen he was giving up Indian citizenship, but was willing to do so because he was not intending to return to India permanently. His problems continued with his left wrist and by 2008 he also had some pain in his right wrist. He consulted his general practitioner, Dr Sandhu, for these continuing problems. Later the surgical screw was removed from his left wrist, presumably because the previous fracture was now united. Thereafter, from 2011, the plaintiff continued to have pain in both wrists but he was able to manage it and continue working. The complaints of wrist pain to his doctor seem to have dropped off after 2012. He continued to be employed at Dana Spicer Axle for 11 years before being made redundant in December 2013. He thereafter obtained an advanced diploma of logistics, which was a short course of study. His subsequent employment included working for Slumber Care in Victoria, constructing bed bases. He then moved to Kiddo Enterprises Pty Ltd as a mail sorter and delivery driver. He then obtained full time work as a folder operator with Design Sheet Metal which later became known as Design Group. Although he continued with the delivery work for a time, he later gave it up because of the full time nature of his work at Design Group. He commenced there on 25 May 2014 and was employed there at the time of the motor vehicle accident.

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.