Maher v Russell

Case [2022] ACTSC 297


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Maher v Russell

Citation:

[2022] ACTSC 297

Hearing Dates:

25 October 2021 – 27 October 2021, 25 January 2022

Submissions Last Received:

25 July 2022

DecisionDate:

28 October 2022

Before:

Loukas-Karlsson J

Decision:

See [340]

Catchwords:

DAMAGES – PERSONAL INJURY – Where defendants conceded liability for damages arising from motor vehicle  accident – where plaintiff had pre-existing fibromyalgia –  where plaintiff’s evidence was that following accident condition became symptomatic – only issue quantum of damages – general damages – past and future domestic assistance – where expert estimate found to not reflect plaintiff’s evidence – where basis of proposed expert calculation not explained in submissions or evidence – domestic assistance best assessed on plaintiff’s evidence as to need – consideration of appropriate hourly rate for future care –  past and future economic loss – consideration of appropriate method to calculate economic loss – where plaintiff’s claim relied on comparison of earnings rather than a focus on loss of capacity – where current capacity impacted by accident and other matters – consideration of appropriate method to assess award for superannuation – consideration of claim for future out-of-pocket expenses

Legislation Cited:

Civil Law (Wrongs) Act 2002 (ACT) s 45

Cases Cited:

Amin v Vidal [2020] ACTSC 227; 94 MVR 285
Austen v Tran [2022] ACTSC 114
Benning v Richardson [2021] ACTSC 34
Buljat v Coles Supermarkets Australia Pty Ltd [2022] ACTSC 47
Carmen Utting v Ben Clarke & Insurance Australia Limited T/A NRMA Insurance [2016] ACTSC 168
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Cressy v Miloriad [2016] ACTSC 303
Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588
DNM Mining Pty Ltd v Barwick [2004] NSWCA 137
Hall v Martin [2020] ACTSC 233
Hauraki v Steinhoff Asia Pacific Limited trading as Freedom Furniture [2021] ACTSC 54
Howard v Aikman [2015] ACTCA 64; 74 MVR 184
John XXII College v SMA [2022] ACTCA 32

Kone Elevators Pty Ltd v Shipton [2021] ACTCA 33
Lee v McGrath [2018] ACTSC 173
Lewis v Woolworths Limited [2018] ACTSC 200
MacDonald v Mailander and RACQ Insurance Limited [2014] ACTSC 45
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705
Mason v Demasi [2009] NSWCA 227
Massouras v Kone Elevators Pty Ltd [2020] ACTSC 66
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Najdovski v Crnojlovic [2008] NSWCA 175; 72 NSWLR 728
Oliver v Roberts [2018] ACTCA 35
Pidcock v Milosis [2019] ACTSC 209
R v WR (No 3) [2010] ACTSC 89
Rhodin v Coles Supermarkets Australia Pty Ltd [2019] ACTSC 207
Roberson v Icon Distribution Investments Ltd [2020] ACTSC 320; 15 ACTLR 256
Ryrie v Tanner (No 2) [2020] ACTSC 104
Scuderi v Raskurasingham [2017] ACTSC 41
SLS v The Queen [2014] VSCA 31; 42 VR 64
SMA v John XXIII College (No 2) [2020] ACTSC 211
Stanford v Dermejian [2020] ACTSC 151
Steed v McDougall [2019] ACTSC 36
The…

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Maher v Russell [2022] ACTSC 297
Case
[2022] ACTSC 297
Decision Date

CaseChat Overview and Summary

In the case of Maher v Russell, the plaintiff, who had pre-existing fibromyalgia, claimed damages for injuries sustained in a motor vehicle accident. The defendants admitted liability, and the only matter in dispute was the quantum of damages. The dispute primarily focused on general damages, past and future domestic assistance, economic loss, superannuation, and future out-of-pocket expenses.

The legal issues before the court were to determine the appropriate amount of damages for the plaintiff's injuries. Specifically, the court needed to assess the extent to which the accident exacerbated the plaintiff's pre-existing condition, the appropriate method to calculate domestic assistance, the suitable hourly rate for future care, the most appropriate method to calculate economic loss, and the correct approach to assess the award for superannuation and future out-of-pocket expenses. The court was also tasked with evaluating the experts' evidence and submissions to ensure they accurately reflected the plaintiff's circumstances.

The court found that the plaintiff's evidence regarding the exacerbation of her condition due to the accident was credible. It determined that the expert's estimate for domestic assistance did not align with the plaintiff's evidence, and thus, domestic assistance should be assessed based on the plaintiff's testimony. The court also considered the appropriate hourly rate for future care and selected a method to calculate economic loss that aligned with the plaintiff's earnings comparison approach, despite her current capacity being impacted by the accident and other factors. The court further assessed the claim for superannuation and future out-of-pocket expenses, ensuring they were appropriately calculated.

The court's final orders, detailed in [340], awarded the plaintiff a sum that reflected the court's findings on general damages, domestic assistance, economic loss, superannuation, and future out-of-pocket expenses.

Orders

Orders of the court

See [340]

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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