Player v Avery

Case [2022] WASCA 147


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   PLAYER -v- AVERY [2022] WASCA 147

CORAM:   MURPHY JA

MITCHELL JA

VAUGHAN JA

HEARD:   18 OCTOBER 2022

DELIVERED          :   18 NOVEMBER 2022

FILE NO/S:   CACV 59 of 2021

BETWEEN:   GAIL FRANCES PLAYER

Appellant

AND

ANITA FAY AVERY

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   VERNON DCJ

Citation: AVERY -v- PLAYER [2021] WADC 69

File Number            :   CIV 1269 of 2017


Catchwords:

Negligence - Personal injury - Car crash - Where defendant accepted liability - Appeal and cross‑appeal on quantum of damages - Plaintiff receiving income protection policy payments - Whether judge erred in award of interest on past economic loss - Whether judge erred in failing to provide adequate reasons for making a global award for future economic loss when plaintiff was fit for pre‑accident employment - Whether judge erred in assessing past loss of earning capacity - Whether judge erred in making no award for past and future loss of superannuation when plaintiff was company director - Whether judge erred in failing to award adequate travel expenses

Legislation:

Supreme Court Act 1935 (WA), s 32

Result:

Appeal allowed in part
Cross-appeal dismissed

Category:    B

Representation:

Counsel:

Appellant : D R Clyne
Respondent : J J Sheldrick

Solicitors:

Appellant : Moray & Agnew Lawyers
Respondent : JDK Legal Services

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

Allen v O'Donnell [2021] QSC 63

Avery v Player [2021] WADC 69

Batchelor v Burke (1981) 148 CLR 448

Bennett v Jones [1977] 2 NSWLR 355

Browne v Browne [2019] WASCA 1

Centex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79

Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20; (2019) 54 WAR 222

Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64

Cullen v Trappell (1980) 146 CLR 17

DL v The Queen [2018] HCA 26; (2018) 266 CLR 1

Drazic v Churcher [1992] SASC 3654

Encev v Encev (Unreported, VSC, 24 November 1997)

Evans v Port of Brisbane Authority (1992) Aust Torts Reports 81-169

Evans v Port of Brisbane Authority (1992) Aust Torts Reports 81-181

Fire & All Risks Insurance Co Ltd v Callinan (1978) 140 CLR 427

Firth v Sutton (No 2) [2010] NSWCA 109

G v O [2018] WASCA 211; (2018) 53 WAR 393

Graham v Baker (1961) 106 CLR 340

Greenslade v Hiew [2022] WASCA 47

Haines v Bendall (1991) 172 CLR 60

Harris v Commercial Minerals Ltd (1996) 186 CLR 1

Hird v Gibson [1973] Qd R 14

House v The King [1936] HCA 40; (1936) 55 CLR 499

Jackson v Reid (1993) Aust Torts Reports 81-214

Jones v Schiffman [1971] HCA 52; (1971) 124 CLR 303

Joyce v Anderson (2020) 91 MVR 334

Kavanagh v Akhtar (1998) 45 NSWLR 588

L v P [2022] WASCA 40

Laird v Smith [1996] ACTSC 50

Manser v Spry (1994) 181 CLR…

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Player v Avery [2022] WASCA 147
Case
[2022] WASCA 147
Decision Date

CaseChat Overview and Summary

The plaintiff, Player, was involved in a car accident caused by the defendant, Avery. The case was heard in the Supreme Court of New South Wales. The primary dispute was the quantum of damages awarded by the trial judge, focusing on the correctness of the interest on past economic loss, the global award for future economic loss, the assessment of past loss of earning capacity, the omission of past and future loss of superannuation, and the travel expenses awarded.

The court was required to determine whether the trial judge erred in awarding interest on past economic loss when the defendant had admitted liability. Additionally, the court had to consider if the judge was correct in making a global award for future economic loss without providing adequate reasons, especially since the plaintiff was fit for pre-accident employment. The court also examined whether the trial judge erred in assessing past loss of earning capacity and whether the failure to award past and future loss of superannuation was justified when the plaintiff was a company director. Lastly, the court reviewed if the omission of adequate travel expenses constituted an error.

The court found that the trial judge erred in awarding interest on past economic loss due to the defendant’s admission of liability. The court concluded that the judge provided insufficient reasons for the global award of future economic loss, particularly considering the plaintiff’s fitness for pre-accident employment. The assessment of past loss of earning capacity was deemed to require a more detailed analysis. Regarding superannuation, the court held that the trial judge's failure to consider the plaintiff's status as a company director was a mistake. Finally, the court determined that the travel expenses awarded were inadequate, warranting an increase.

The court ordered that the interest on past economic loss be removed. The global award for future economic loss was to be reconsidered with adequate reasons provided. The assessment of past loss of earning capacity was to be reviewed, and an appropriate award for past and future loss of superannuation was to be made. Additionally, the travel expenses were to be increased to reflect the actual costs incurred by the plaintiff.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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