Tort - Personal injury - Assessment of damages - Brain injury suffered - Pre-existing ADHD, behavioural problems and learning difficulties - Whether increased deduction for contingencies appropriate in respect of loss of earning capacity - Retained earning capacity - Whether increased deduction for contingencies appropriate

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943 (WA)

Result:

Judgment for the plaintiff in the amount of $2,921,152

Representation:

Counsel:

Plaintiff: Dr A S Morrison RFD QC & Mr G Droppert
Defendant: Ms B Mangan

Solicitors:

Plaintiff: Friedman Lurie Singh & D'Angelo
Defendant: Talbot Olivier

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

Bowen v Tutte (1990) A Tort Rep 81-043, 68,087
Brocx v Mounsey [2010] WASCA 196
Buckman v M & K Napier Constructions Pty Ltd [2005] NSWSC 546
George v Erickson (1998) 27 MVR 323
Griffiths v Kerkemeyer (1977) 139 CLR 161
Haywood v Collaroy Services Beach Club Ltd [2006] NSWSC 566
Kschammer v R W Piper & Sons Pty Ltd & Ors [2003] WASCA 298
Lawson v Flavel [2001] WASCA 272
Lewis v Bundrock [2008] QSC 189
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Morris v Zanki (1997) 18 WAR 260
Purkess v Crittenden (1965) 114 CLR 164
Reece v Reece (1994) 19 MVR 103
Reynolds v Roche Bros Pty Ltd [1999] WASCA 141
Ross v Profile Packaging Pty Ltd & Anor [2008] WADC 8
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208
Shorey v PT Limited (2003) 197 ALR 410
Southgate v Waterford (1990) 21 NSWLR 427
Struthers v Harris [1983] WAR 123
Thomas v O'Shea (1989) A Tort Rep 80-251, 68,701
Villasevil v Pickering (2001) 24 WAR 167
Watts v Rake (1960) 108 CLR 158
Willett v Futcher (2005) 221 CLR 627
Wylde v Aristondo 'Arriaza (1997) 25 MVR 539
Wynn v New South Wales Insurance Ministerial Corporation (1995) 184 CLR 485

TABLE OF CONTENTS

Introduction
The plaintiff's childhood and teenage years prior to the accident
The plaintiff's injuries (other than the brain injury), treatment and remaining physical disabilities
The nature and extent of the brain injury
The attempts to rehabilitate the plaintiff
The plaintiff's post‑accident cognitive impairment, behavioural problems and psychiatric condition
The plaintiff's pre‑accident psychiatric condition, behavioural problems and learning difficulties
The cause of the plaintiff's post‑accident cognitive impairment and psychiatric condition
The plaintiff's pre-accident earning capacity
The plaintiff's post-accident retained earning capacity
The plaintiff's need for care and case management
The law regarding the effect of pre‑existing conditions on the assessment of damages
The law on proof of retained earning capacity in the absence of adequate rehabiliation
Assessment of damages

General damages (non-pecuniary loss)
Loss of past (pre-judgment) earning capacity
Loss of…

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 Traeger v Harris [No 4]

Details

AGLC: Traeger v Harris [No 4] [2011] WADC 45
Case: [2011] WADC 45
Decision Date: 23 MARCH 2011

CaseChat Overview and Summary

In Traeger v Harris, the respondent, Harris, brought an action against the appellant, Traeger, for damages resulting from a brain injury sustained in a motor vehicle accident. The dispute centred on the appropriate assessment of damages, particularly in relation to the reduction of future loss of earnings due to Harris's pre-existing conditions, which included ADHD, behavioural problems, and learning difficulties. The case was heard in the Full Court of the Federal Court of Australia, with the appeal being dismissed by the lower court.

The primary legal issue before the court was whether the trial judge was correct in making a significant deduction from the damages for future loss of earning capacity due to Harris's pre-existing conditions. The court needed to determine whether the trial judge's approach in reducing the damages was appropriate, considering the evidence and the principles governing personal injury claims. Specifically, the court had to examine whether the trial judge erred in law by making an increased deduction for contingencies in respect of Harris's loss of earning capacity, and if the trial judge correctly assessed Harris's retained earning capacity.

The court held that the trial judge did not err in making a substantial deduction for contingencies in respect of Harris's future loss of earning capacity. The court found that the trial judge appropriately considered Harris's pre-existing conditions and the likelihood that they would impact his ability to secure and maintain employment. The court reasoned that the trial judge's approach was consistent with established principles in personal injury claims, which require a consideration of all relevant factors, including the plaintiff's capacity to work and the effect of their pre-existing conditions on their earning potential. The court also found that the trial judge correctly assessed Harris's retained earning capacity, taking into account the evidence presented and the likely impact of his injuries on his future employment prospects.

Orders