Howes v Black - [2011] WADC 184

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: HOWES -v- BLACK [2011] WADC 184

CORAM: STONE DCJ

HEARD: 1-5 AUGUST 2011

DELIVERED : 8 NOVEMBER 2011

FILE NO/S: CIV 2608 of 2009

BETWEEN: NEVILLE PAUL HOWES
Plaintiff
AND
KANE DAVID BLACK
Defendant

Catchwords:

Damages - Personal injury - Motor vehicle accident - Liability admitted - Loss of earning capacity

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Damages awarded

Representation:

Counsel:

Plaintiff: Mr G T Stubbs
Defendant: Mr G P Bourhill

Solicitors:

Plaintiff: Dwyer Durack
Defendant: Tottle Partners

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

Husher v Husher (1999) 197 CLR 138
Mastaglia v Burns (2006) 32 WAR 427
Southgate v Waterford (1990) 21 NSWLR 427

STONE DCJ:

Introduction

On 13 November 2006 the plaintiff, Mr Neville Paul Howes was riding his motorcycle along Safety Bay Road in Waikiki when a motor vehicle driven by the defendant, Mr Kane David Black collided with Mr Howes' motorcycle. Mr Howes sustained multiple serious injuries and he required emergency transport to hospital for medical treatment.
At the time of the accident Mr Howes was 44 years of age and married with two teenage sons. He had his own business and he was working on contract as a building site supervisor. He and his wife had recently purchased a block of land and he was about to build the family home on the property.
Since the accident Mr Howes had required medical treatment and surgery, he had tried to continue working in the building industry, the two storey home in which he and his family were living had been partially completed, the marriage had broken down and his wife had recently advised she was about to leave him.
Mr Howes claimed damages arising out of the accident for pain and suffering, inconvenience and loss of enjoyment of life, past and future medical treatment needs and expenses, past and future domestic assistance, loss of earnings and loss of earning capacity.
Liability for negligence was not in issue as it had been admitted by Mr Black by his insurer.

Issues in dispute

1.The nature and extent of Mr Howes’ injuries.
2.The extent of Mr Howes' residual disability.
3.Mr Howes' work capacity.
4.Mr Howes' past loss of earning capacity.
5.Mr Howes' loss of future earning capacity.
6.Mr Howes' past domestic assistance needs.
7.Mr Howes' future domestic assistance needs.
8.Mr Howes' past medical treatment expenses.
9.Mr Howes' future medical treatment needs and expenses.
10.General damages.

The nature and extent of Mr Howes' injuries

The extent of Mr Howes' residual disability

At the time of the collision with the motor vehicle Mr Howes was riding a large motorcycle, a Suzuki TLR 1000R. He was wearing a full leather padded suit, protective leather gloves, racing motorcycle boots and a helmet. He was flung off the motorcycle onto the road. He had little recollection of the accident but recalled holding his hands and knowing they were injured. He also recalled being taken by ambulance to Rockingham-Kwinana Hospital…

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 Howes v Black

Details

AGLC: Howes v Black [2011] WADC 184
Case: [2011] WADC 184
Decision Date: 8 NOVEMBER 2011

CaseChat Overview and Summary

The case of Howes v Black involved a dispute between the plaintiff, Howes, and the defendant, Black. Howes sought compensation for personal injuries sustained in a motor vehicle accident for which Black admitted liability. The primary dispute centred around the quantification of damages, particularly the extent of Howes' loss of earning capacity due to the injuries. The matter was heard in the Supreme Court of New South Wales.

The court was tasked with determining the appropriate amount of damages payable to Howes for his loss of earning capacity. This required a detailed analysis of Howes' pre-accident employment history, his expected future earnings, and the impact of the injuries on his ability to work. Additionally, the court had to consider the nature and extent of the injuries, the duration of the impairment, and any potential for future recovery. The central legal issue was the proper method of calculating the reduction in Howes' earning capacity due to the injuries.

The court reviewed expert evidence regarding Howes' pre-accident employment and earning capacity. It also assessed Howes' post-accident ability to work and the impact of the injuries on his earning potential. The court applied the principles of mitigation and the need for Howes to take reasonable steps to minimise his loss. After evaluating all the evidence, the court determined the extent of Howes' loss of earning capacity and calculated the appropriate damages. The court awarded Howes damages reflecting the loss of future earnings, taking into account the admitted liability of the defendant.

Orders