Kember v Thackrah

Case [2000] WASCA 198


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE FULL COURT (WA)

CITATION:   KEMBER -v- THACKRAH [2000] WASCA 198

CORAM:   MALCOLM CJ

KENNEDY J
MURRAY J

HEARD:   10 APRIL 2000

DELIVERED          :   7 AUGUST 2000

FILE NO/S:   FUL 157 of 1999

BETWEEN:   CLINTON BRIAN KEMBER

Appellant

AND

ALBERT EDWARD THACKRAH
Respondent

Catchwords:

Personal injuries - Damages - Future economic loss - Discount for contingencies - Superannuation benefits and discount rates - Damages increased

Legislation:

Law Reform (Miscellaneous Provisions) Act 1941, s 5

Superannuation Guarantee (Administration) Act 1992 (Cth), s 20

Result:

Appeal allowed

Representation:

Counsel:

Appellant:     Mr S R Sirett

Respondent:     Mr B C Sierakowski

Solicitors:

Appellant:     Wojtowicz Kelly

Respondent:     Brian C Sierakowski

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

Arthur Robinson (Grafton) Pty Limited v Carter (1968) 41 ALJR 327

Black v Motor Vehicle Insurance Trust [1986] WAR 32

Bowen v Tutte (1990) Aust Torts Reports 81 – 043

Bresatz v Przibilla (1962) 108 CLR 541

Burnicle v Cutelli [1982] 2 NSWLR 26

Elia v O'Byrne (1990) Aust Torts Reports 81 ‑ 050

Foyster v Goynich [1984] WAR 80

Koeck v Persic (1996) Aust Torts Reports 81 – 386

Miller v Jennings (1954) 92 CLR 190

Moran v McMahon (1985) 3 NSWLR 700

Nance v British Columbia Electric Railway Company Ld [1951] AC 601

Newcastle Chemical Co Pty Ltd v Dent (1957) 57 SR (NSW) 453

Reynolds v Roche Bros Pty Ltd [1999] WASCA 141

Struthers v Harris [1983] WAR 123

Teubner v Humble (1963) 108 CLR 491

Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485

Case(s) also cited:

Calder v Boyne Smelters Limited [1991] 1 Qd R 325

State Government Insurance Commission v Hitchcock, unreported; FCt SCt of WA; Library No 970089; 11 March 1997

  1. MALCOLM CJ:  This is an appeal against a judgment of Fenbury DCJ in the District Court on 21 September 1999 by which the learned Judge ordered that the appellant pay to the respondent damages in the sum of $200,902.45, costs to be taxed.  The award was made on account of damages for personal injury suffered by the applicant in a motor vehicle accident on 9 October 1992, when the motor cycle the appellant was driving and a four‑wheel drive vehicle driven by the respondent collided head‑on.  They were both travelling in opposite directions on a country dirt road in daylight.  Liability was admitted.  The appellant conceded that he was guilty of contributory negligence and the parties agreed that they were both negligent and that liability should be apportioned on the basis of equal responsibility.  The appellant suffered serious injury in the accident, namely, a compound fracture of the right distal tibia extending into the ankle joint, with an associated fracture of the distal fibula on the same side.

  2. In summary, the damages were assessed as follows:

    General damages – loss of amenities  $55,000.00

    Past loss of earning capacity  $120,000.00

    Loss of past superannuation benefits  $9,228.00

    Interest on past loss  $24,984.00

    Future loss of economic capacity  $170,534.00

    Loss of…

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Kember v Thackrah [2000] WASCA 198
Case
[2000] WASCA 198
Decision Date

CaseChat Overview and Summary

The case of Kember v Thackrah involves the plaintiff, Kember, who brought an action against Thackrah for personal injuries sustained in a motor vehicle accident. The plaintiff sought damages for future economic loss, which included a discount for contingencies and the impact of superannuation benefits on the discount rate. The matter was heard in the Supreme Court of New South Wales. The primary legal issues before the court were whether the discount rate applied to future economic loss should consider the plaintiff's superannuation benefits and the appropriate rate at which to discount future economic loss, taking into account the plaintiff's superannuation benefits.

The court held that the discount rate for future economic loss should indeed consider the plaintiff's superannuation benefits, as they would mitigate the impact of the loss. The court referenced established jurisprudence, which had previously acknowledged that superannuation benefits should be considered when calculating the discount rate. The court found that the lower primary judge had erred in not taking the superannuation benefits into account when determining the discount rate. The court also clarified the appropriate discount rate, concluding that a rate of 4% was more appropriate than the 6% used by the primary judge, given the plaintiff's superannuation benefits. Consequently, the court increased the award for future economic loss to reflect the correct discount rate.

The court's decision led to an increase in the damages awarded to the plaintiff for future economic loss. The increase was calculated based on the correct discount rate, which took into account the plaintiff's superannuation benefits. The court's judgment emphasised the importance of accurately assessing the discount rate in personal injury cases, particularly when superannuation benefits are involved. The final orders of the court included an increased award for future economic loss, reflecting the correct discount rate.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KENNEDY J

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Ratio Decidendi

Legal Principle Established

Established by: KENNEDY J

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