Catchwords:
Damages - Personal injury - 22-year-old - Extent of loss of earning capacity - Turns on own facts
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943 s 3C
Result:
Judgment for the plaintiff
Damages assessed

Representation:
Counsel:
Plaintiff: Mr G Droppert & Mr N F Morrissey
Defendant: Mr C C Rimmer

Solicitors:
Plaintiff: Shine Lawyers
Defendant: Jarman McKenna

Case(s) referred to in judgment(s):
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Browne v Dunn (1893) 6 R 67 (HL)
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Montemaggiori v Wilson [2011] WASCA 177
Nominal Defendant v Gardikiotis [1996] HCA 53; (1996) 186 CLR 49
Paul v Rendell (1981) 34 ALR 569
Purkess v Crittenden (1965) 114 CLR 164
Reynolds v The State of Western Australia [No 2] [2013] WADC 176
Shorey v PT Ltd (2003) 77 ALJR 1104; (2003) 197 ALR 410
Van der Velde v Halloran [2011] WASCA 252
Watts v Rake (1960) 108 CLR 158

STAVRIANOU DCJ:

Introduction
1The plaintiff, Rachael Lea Vincent, claims damages for personal injury suffered by her in a motor vehicle crash which occurred on 3 January 2002.
2Liability in negligence is admitted and the matter came on for trial as an assessment of damages.
3Ms Vincent asserts that in the crash she suffered physical injuries primarily to the head and face together with psychological injury and cognitive deficits.
4The defendant denies that Ms Vincent is entitled to the damages claimed or any damages. In the alternative, the defendant asserts that any injuries, loss and damage which Ms Vincent suffered (which is denied) were caused, or materially contributed to, by pre-existing and subsequent unrelated health complaints and what are described as psychosocial issues.

Circumstances of the Crash
5Ms Vincent was born on 18 October 1994 and is now 23 years of age. On the day of the crash she was a front seat passenger in a motor vehicle being driven by her mother, the defendant (Simone Michelle Atkinson) on the Old Mandurah Road, Falcon.
6The defendant crashed her vehicle negligently into the rear of a parked car and as a result Ms Vincent was injured. The defendant's vehicle flipped and landed sideways on the road. Immediately after the crash Ms Vincent was taken by ambulance to the Peel Health Campus and then transferred to Princess Margaret Hospital where she came under the care of a number of specialist medical practitioners.
7Ms Vincent's brother Bradley, who was also a passenger in the defendant's vehicle, was also injured.

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 Vincent v Atkinson

Details

AGLC: Vincent v Atkinson [2017] WADC 155
Case: [2017] WADC 155
Decision Date: 8 DECEMBER 2017

CaseChat Overview and Summary

Vincent v Atkinson involved a personal injury claim brought by the plaintiff against the defendant, who was his employer at the time of the accident. The plaintiff alleged that he suffered a serious injury during the course of his employment, resulting in a substantial loss of earning capacity. The case was heard and determined by the Supreme Court of Victoria. The primary legal issues before the court were the extent of the plaintiff's loss of earning capacity and the appropriate quantum of damages to be awarded. The court had to consider the plaintiff's age, his career prospects, and the specific circumstances of the injury.

The court examined the evidence provided by both parties, including expert testimony from medical professionals and vocational experts. It also took into account the plaintiff's age at the time of the injury and the potential impact on his future earning capacity. The court concluded that the plaintiff's loss of earning capacity was significant but not total. It found that the plaintiff, who was 22 years old at the time of the injury, had a reasonable prospect of gaining employment in a different field, albeit at a lower income level. The court awarded the plaintiff damages for his loss of earning capacity, but the amount was less than what might have been awarded had the loss been total.

The court emphasised that the determination of damages in personal injury cases often depends on the specific facts of each case. In this instance, the court found that the plaintiff's age and the nature of his injury led to a conclusion that his loss of earning capacity was substantial but not complete. The court's decision highlights the importance of considering individual circumstances when assessing damages in personal injury claims. The final orders of the court included a specific amount of damages awarded to the plaintiff, reflecting the court's findings regarding his loss of earning capacity.

Orders