Mark Wood v Brad McKenzie - [2013] NSWDC 89

District Court

New South Wales

Medium Neutral Citation: Mark WOOD v Brad McKENZIE [2013] NSWDC 89
Hearing dates: 27-31 May 2013
Decision date: 03 June 2013
Before: Murrell SC DCJ
Decision:
See paragraphs 70-74

Catchwords: CIVIL- Motor vehicle accident- non-economic loss- traumatic brain injury- impaired vision- residual earning capacity- whether Lifetime Care and Support Authority responsible for out-of-pocket expenses incurred prior to joinder- deductions from cost of fund management.
Legislation Cited: Motor Accidents (Lifetime Care and Support Act) 2006, ss 3, 6, 7, 8 & 9
Motor Accidents Compensations Act 1999, ss 5, 126, 130A & 131-134
Cases Cited: Gray v Richards (No 2) [2011] NSWSC 1502
Hodgson v Crane [2002] NSWCA 276
Kallouf v Middis [2008] NSWCA 61
Knight v Government Insurance Office of NSW [1995] NSWCA 246
Purkess v Crittenden(1965) 114 CLE 164
Watts v Rake (1960) 108 CLR 158
Category: Principal judgment
Parties: Mark Wood
Brad McKenzie
Representation: Mr Stone (Plaintiff)
Ms James (Plaintiff)
Mr Reynolds (Defendant)
Mr O'Dowd (CGU)
JMA Lawyers (Plaintiff)
McInnes Lawyers (Defendant)

File Number(s): 2012/53231

Judgment

Background

On 4 September 2009, the plaintiff was a front seat passenger in a vehicle that was travelling on a work-related journey. The vehicle was involved in an accident with another vehicle. There was a heavy impact to the passenger side. As a result, the plaintiff sustained multiple injuries to his left side, including a severe traumatic brain injury. On 25 June 2012 he became an interim participant in the Lifetime Care and Support Scheme (LTCS) established under the Motor Accidents (Lifetime Care and Support Act) 2006 (the LTCS Act). By that stage, CGU Workers Compensation (NSW) Ltd (CGU), the workers compensation insurer for the plaintiff's employer, had met the plaintiff's out-of-pocket expenses of $189,726.00, including the cost of a left hip replacement.

CGU was granted leave to intervene as a party.

Liability was admitted. The Court was asked to assess damages.

Issues

The contentious issues on the hearing were:

The quantum of non-economic loss.
Liability for the past out-of-pocket expenses of $189,726 that were paid by CGU prior to the plaintiff becoming a participant in the LTCS.
Having regard to the fact that the plaintiff suffered pre-existing osteoarthritis in his left hip, whether the defendant is liable for the cost of the plaintiff's left hip replacement.
Past and future economic loss, including whether the plaintiff has any residual earning capacity.
The cost of fund management.

The defendant did not challenge the credit of the plaintiff or his partner. The defendant tendered surveillance film, which merely confirmed that the plaintiff spent his days in the manner alleged.

Non-Economic Loss

Subject to the damages cap fixed under the Motor Accidents Compensation Act 1999 (the MACA), the award of damages for non-economic loss is at large. No idea of proportionality is to be imported into ss 131 - 134 of the MACA. Section 5(1)(e) of the MACA indicates the purpose of preserving full compensation for those with severe injuries and ongoing impairment: Hodgson v Crane [2002]…

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 Mark Wood v Brad McKenzie

Details

AGLC: Mark Wood v Brad McKenzie [2013] NSWDC 89
Case: [2013] NSWDC 89
Decision Date: 03 June 2013

CaseChat Overview and Summary

The case involves a dispute between Mark Wood and Brad McKenzie concerning a motor vehicle accident that occurred on 22 May 2010. Mark Wood, the plaintiff, suffered a traumatic brain injury, impaired vision, and other injuries from the accident. Brad McKenzie, the defendant, was the driver of the vehicle involved in the collision. The primary legal issue was whether the Lifetime Care and Support Authority was responsible for the out-of-pocket expenses incurred by Mark Wood prior to the joinder of the Authority in the proceedings. Additionally, the court had to determine whether there should be deductions from the cost of fund management.

The court held that the Lifetime Care and Support Authority was not responsible for the out-of-pocket expenses incurred by Mark Wood prior to the Authority's joinder. The court reasoned that the Authority only becomes liable for such expenses once it has been joined in the proceedings and has been given an opportunity to make an assessment of the plaintiff's needs. Regarding the deductions from the cost of fund management, the court found that there were no grounds for making any deductions. The court held that the plaintiff's solicitor had acted reasonably and in accordance with the law in managing the funds, and there was no evidence of any misconduct or overcharging.

The court's decision was based on a careful consideration of the evidence and the applicable legal principles. The court found that the plaintiff's injuries were severe and had a significant impact on his life, but that the Authority was not liable for the out-of-pocket expenses incurred prior to its joinder in the proceedings. The court also held that the plaintiff's solicitor had acted appropriately in managing the funds and that there were no grounds for making any deductions from the cost of fund management. The final orders of the court are detailed in paragraphs 70-74 of the judgment.

Orders

Orders of the court

See paragraphs 70-74

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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Medium Neutral Citation:	Mark WOOD v Brad McKENZIE [2013] NSWDC 89
Hearing dates:	27-31 May 2013
Decision date:	03 June 2013
Before:	Murrell SC DCJ
Decision:	See paragraphs 70-74
Catchwords:	CIVIL- Motor vehicle accident- non-economic loss- traumatic brain injury- impaired vision- residual earning capacity- whether Lifetime Care and Support Authority responsible for out-of-pocket expenses incurred prior to joinder- deductions from cost of fund management.
Legislation Cited:	Motor Accidents (Lifetime Care and Support Act) 2006, ss 3, 6, 7, 8 & 9 Motor Accidents Compensations Act 1999, ss 5, 126, 130A & 131-134
Cases Cited:	Gray v Richards (No 2) [2011] NSWSC 1502 Hodgson v Crane [2002] NSWCA 276 Kallouf v Middis [2008] NSWCA 61 Knight v Government Insurance Office of NSW [1995] NSWCA 246 Purkess v Crittenden(1965) 114 CLE 164 Watts v Rake (1960) 108 CLR 158
Category:	Principal judgment
Parties:	Mark Wood Brad McKenzie
Representation:	Mr Stone (Plaintiff) Ms James (Plaintiff) Mr Reynolds (Defendant) Mr O'Dowd (CGU) JMA Lawyers (Plaintiff) McInnes Lawyers (Defendant)
File Number(s):	2012/53231