KEEN -v- MACKAY [1999] WASCA 193

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 193
Court:	THE FULL COURT (WA)
Case No:	FUL:86/1998	Heard:	7 APRIL 1999
Coram:	KENNEDY J OWEN J WHITE J	Delivered:	8/10/99
No of pages:	13	Judgment Part:	1 of 1
Result:	Appeal allowedDamages for future economic loss increased to $155,000 before apportionment
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Parties:	KENNETH JOHN KEEN JACK GEORGE MACKAY
Catchwords:	Damages Negligence Plaintiff sustaining severe injury to left wrist Naturally right handed Disability assessed at 15 to 17.5 per cent loss of use of left arm below the elbow Award of $30,000 for general damages less required deduction of $10,000 pursuant to Motor Vehicle (Third Party Insurance) Act 1943, s3C Award of $140,000 damages for future economic loss Whether deduction for contingencies excessive Turns on own facts
Legislation:	Nil
Case References:	Brown v Rodrigues, unreported; FCt SCt of WA; Library No 970334; 3 July 1997 Thomas v O'Shea (1989) Aust Torts Rep 80-251 Black v Motor Vehicle Insurance Trust [1986] WAR 32 Bowen v Tutte (1990) Aust Torts Rep 81-043 Gamser v Nominal Defendant (1977) 136 CLR 145 Geldenhuys v Ah Lek Soo, unreported; FCt SCt of WA; Library No 990147; 23 March 1999 Morris v Zanki (1997) 18 WAR 260 Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 Wright v Shire of Albany (1993) Aust Torts Rep 81-237

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : KEEN -v- MACKAY [1999] WASCA 193 CORAM : KENNEDY J

OWEN J

WHITE J

HEARD : 7 APRIL 1999 DELIVERED : 8 OCTOBER 1999 FILE NO/S : FUL 86 of 1998 BETWEEN : KENNETH JOHN KEEN

Appellant (Plaintiff)

AND

JACK GEORGE MACKAY

Respondent (Defendant)

Catchwords:

Damages - Negligence - Plaintiff sustaining severe injury to left wrist - Naturally right handed - Disability assessed at 15 to 17.5 per cent loss of use of left arm below the elbow - Award of $30,000 for general damages less required deduction of $10,000 pursuant to Motor Vehicle (Third Party Insurance) Act 1943, s 3C - Award of $140,000 damages for future economic loss - Whether deduction for contingencies excessive - Turns on own facts

Legislation:

Nil

(Page 2)

Result:

Appeal allowed

Damages for future economic loss increased to $155,000 before apportionment

Representation:

Counsel:

Appellant (Plaintiff) : Mr T P Heard

Respondent (Defendant) : Mr J P T Olivier

Solicitors:

Appellant (Plaintiff) : Bradford & Co

Respondent (Defendant) : Talbot & Olivier

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

Brown v Rodrigues, unreported; FCt SCt of WA; Library No 970334; 3 July 1997
Thomas v O'Shea (1989) Aust Torts Rep 80-251

Case(s) also cited:

Black v Motor Vehicle Insurance Trust [1986] WAR 32
Bowen v Tutte (1990) Aust Torts Rep 81-043
Gamser v Nominal Defendant (1977) 136 CLR 145
Geldenhuys v Ah Lek Soo, unreported; FCt SCt of WA; Library No 990147; 23 March 1999
Morris v Zanki (1997) 18 WAR 260
Planet Fisheries Pty Ltd v…

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 Keen v Mackay

Details

AGLC: Keen v Mackay [1999] WASCA 193
Case: [1999] WASCA 193
Decision Date: 8 OCTOBER 1999

CaseChat Overview and Summary

In the case of Keen v Mackay, the plaintiff, Keen, was severely injured in his left wrist, becoming naturally right-handed. He was assessed to have a 15 to 17.5 per cent loss of use of his left arm below the elbow. The court awarded Keen $30,000 for general damages, reduced by $10,000 due to the Motor Vehicle (Third Party Insurance) Act 1943, s 3C. Additionally, Keen was awarded $140,000 for future economic loss. The defendant, Mackay, appealed against the amount awarded for future economic loss, contending that the deduction for contingencies was excessive. The matter was brought before the court to determine whether the trial judge erred in assessing the damages for future economic loss.

The central legal issue before the court was whether the trial judge had made an error in calculating the damages for future economic loss, specifically in relation to the deduction for contingencies. Mackay argued that the deduction was excessive and that the trial judge had failed to properly consider the contingencies that would likely affect Keen's future earnings. The court had to examine the principles guiding the assessment of damages for future economic loss and whether the trial judge had applied them correctly in this instance.

The court found that the trial judge had not erred in his assessment of the damages for future economic loss. It held that the trial judge had properly taken into account the contingencies and made a reasonable estimation of the future economic loss. The court noted that each case turns on its own facts, and the trial judge had considered the specific circumstances of Keen's injury and its impact on his earning capacity. However, the court did find that the award of $140,000 for future economic loss was excessive and increased it to $155,000 before apportionment.

The court allowed the appeal and ordered that the damages for future economic loss be increased to $155,000 before apportionment. This decision highlights the importance of a careful and reasoned assessment of damages in personal injury cases, taking into account the specific circumstances of the plaintiff and the contingencies that may affect their future.

Orders

Orders of the court

Appeal allowedDamages for future economic loss increased to $155,000 before apportionment

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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